Common use of Open Market Offer; Right of First Refusal Clause in Contracts

Open Market Offer; Right of First Refusal. (i) If a Stockholder proposes to make an Authorized Transfer, such Stockholder shall first make an offering of such shares of Company Common Stock to Buyer in accordance with the provisions of Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. (ii) If a Stockholder proposes to Transfer Subject Stock in the open market pursuant to a Rule 10b5-1 Plan or a limit order executed by a broker: (1) The Stockholder shall give written notice (the “Open Market Notice”) to Buyer stating its bona fide intention to enter into a Rule 10b5-1 Plan or to instruct a broker to execute a limit order in the open market, as applicable, and specifying (A) the number of shares of Company Common Stock which the Stockholder proposes to sell pursuant to such Rule 10b5-1 Plan or limit order (the “Open Market Shares”) and (B) the lowest price per share of Company Common Stock at which such Stockholder will sell such Open Market Shares pursuant to such Rule 10b-5-1 Plan or limit order (the “Open Market Limit Price”) and provide a copy of such Rule 10b5-1 Plan or limit order to Buyer. (2) Upon the later of receipt of the Open Market Notice and a copy of such Rule 10b5-1 Plan or limit order, Buyer shall have one (1) Business Day (the “Open Market Offer Notice Period”) to offer to purchase some or all of the Open Market Shares by delivering a written notice (an “Open Market Offer Notice”) to the Stockholder that delivered the Open Market Notice stating the number of Open Market Shares it has elected to purchase at a purchase price per share equal to the Open Market Limit Price; provided that, in the case of any Open Market Offer Notice delivered pursuant to the second sentence of Section 2.03(b), Buyer shall have one (1) Business Day after the Closing Date to deliver an Open Market Offer Notice with respect to the Open Market Shares set forth in such Open Market Offer Notice. Upon the delivery of an Open Market Offer Notice pursuant to this clause (2) or clause (3) below, Buyer shall then be obligated to purchase, and the Stockholder shall then be obligated to sell, the Open Market Shares specified in such notice at a price per share equal to the Open Market Limit Price on the terms and conditions above and as contemplated by clauses (iv) and (v) of this Section 2.03(c). (3) If no Open Market Offer Notice is received prior to the end of the Open Market Offer Notice Period (or if an Open Market Offer Notice proposes to purchase less than all of the Open Market Shares, the remaining Open Market Shares) then the Stockholder may (A) in the case of the establishment of a Rule 10b5-1 Plan, commit to sell the applicable Open Market Shares pursuant to a Rule 10b5-1 Plan at a price per Open Market Share that is no less than the Open Market Limit Price and thereafter such Open Market Shares shall not be subject to the restrictions on Transfer set forth in this Section 2.03(c)(ii) so long as they remain subject to the Rule 10b5-1 Plan or (B) in the case of a limit order, instruct a broker or brokers to execute the order with respect to the Open Market Shares (which may be sold in the open market at a price per Open Market Share that is no less than the Open Market Limit Price without further restriction under this Section 2.03(c)(ii) during the duration of such limit order); provided that, for so long as any such Open Market Shares remain unsold during the duration of such Rule 10b5-1 Plan or limit order, Buyer shall have the right to purchase any such Open Market Shares at the higher of (x) the Open Market Limit Price and (y) the closing price of shares of Company Common Stock on Nasdaq (or any successor primary market) as of the Business Day immediately prior to the date of purchase minus $0.10 (such higher price, the “Interim Offer Price”) by delivering to such Stockholder an Open Market Offer Notice stating the number of Open Market Shares it has elected to purchase at the Interim Offer Price. If the Stockholder does not enter into a Rule 10b5-1 Plan or instruct a broker with respect to a limit order within five (5) Business Days of the date of receipt of the Open Market Notice by Buyer, then the rights and obligations provided under this Section 2.03(c) shall be deemed to be revived and the applicable Open Market Shares shall not be offered unless first reoffered to Buyer in accordance with Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. For the avoidance of doubt, the applicable Stockholder shall not Transfer any shares of Company Common Stock pursuant to this Section 2.03(c)(ii) at a price per share that is less than the Open Market Limit Price. (4) If no Person has, as of the Business Day immediately prior to the date of a Transfer to be made by an order executed by a broker, filed a Schedule 13D on EXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock, and such Transfer will be executed through a broker via voice trade (including in the case where a broker seeks to execute a block trade where the proposed transferee did not directly contact, and was not specifically contacted by, or at the direction of, a Stockholder), the Stockholder will cause the executing broker to confirm that the proposed transferee is not, and will not become as a result of such Transfer, a holder of more than five percent (5%) of the issued and outstanding shares of Company Common Stock. To the extent that any Person has, as of the Business Day immediately prior to the date of a Transfer to be made by an order executed by a broker, filed a Schedule 13D on EXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock, the Stockholders shall not execute any such Transfer electronically and shall only execute such Transfer through a broker via voice trade where the broker has confirmed that the proposed transferee is not, and will not become as a result of such Transfer, a holder of more than five percent (5%) of the issued and outstanding shares of Company Common Stock. (iii) If a Stockholder proposes to Transfer Subject Stock in a private transaction or transactions involving one or more Specified Persons or Acceptable Persons: (1) Such Stockholder shall give written notice (the “Stockholder Notice”) to Buyer stating its bona fide intention to sell the shares of Company Common Stock in such a transaction and providing (A) the number of shares of Company Common Stock which the Stockholder proposes to sell (the “ROFR Shares”) and whether the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares, (B) the per share purchase price in cash at which such Stockholder is prepared to Transfer such ROFR Shares to such Specified Person(s) or Acceptable Person(s) (the “Sale Price”), (C) the identity of the Specified Person(s) or Acceptable Person(s), (D) the proposed Transfer date, if known, (E) a copy of any written proposal or letter of intent or other agreement relating to the proposed Transfer and (F) all other material terms and conditions, if any, in connection with such proposed Transfer. (2) Upon receipt of the Stockholder Notice, Buyer shall have two (2) Business Days (the “ROFR Notice Period”) to elect to purchase all (and not less than all, unless the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares) of the ROFR Shares by delivering a written notice (a “ROFR Purchase Notice”) to the Stockholder that delivered the Stockholder Notice stating that it offers to purchase such ROFR Shares (or a portion of the ROFR Shares if the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares) at the Sale Price and on the other terms and conditions set forth in the Stockholder Notice. Any ROFR Purchase Notice shall be binding upon delivery and irrevocable without the consent of the applicable Stockholder. (3) Upon the delivery of the ROFR Purchase Notice, Buyer shall then be obligated to purchase, and the Stockholder shall then be obligated to sell, the ROFR Shares specified in such notice at the Sale Price and on the other terms and conditions set forth in the Stockholder Notice and as contemplated by clauses (iv) and (v) of this Section 2.03(c). (4) If Buyer does not deliver a ROFR Purchase Notice in accordance with Section 2.03(c)(iii)(2), the Stockholder may, during the thirty (30) day period following the expiration of the ROFR Notice Period, enter into an agreement for the sale of all the ROFR Shares to any Specified Person or Acceptable Person at a price in cash not less than the Sale Price set forth in the applicable Stockholder Notice delivered by such Stockholder; provided that, if such Specified Person is not an Acceptable Person, such Specified Person shall represent and warrant to such Stockholder in such agreement that such Specified Person, as of the Business Day immediately prior to the date of such sale, has not filed and will not, as a result of such sale, be required to file, a Schedule 13D on EXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock. If the Stockholder does not enter into an agreement for the sale of the ROFR Shares within such period or, if such agreement is not consummated within sixty (60) days of the execution thereof (which period shall be extended solely to the extent needed to obtain any required governmental approvals, provided that the Stockholder shall have used commercially reasonable efforts to obtain such approval in a timely manner), the rights and obligations provided under this Section 2.03(c) shall be deemed to be revived and such ROFR Shares shall not be offered unless first reoffered to Buyer in accordance with Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. (iv) In connection with the consummation of any Transfer of Company Common Stock pursuant to this Section 2.03(c), upon Buyer’s written request, the Transferring Stockholder shall deliver to Buyer a “big boy” letter duly executed by such Stockholder in the form attached hereto as Exhibit A. (v) The closing of any Transfer of Company Common Stock to Buyer pursuant to this Section 2.03(c) shall be held, in the case of Section 2.03(c)(ii), no later than five (5) Business Days after the delivery of the applicable Open Market Offer Notice and, in the case of Section 2.03(c)(iii), no later than ten (10) Business Days after the delivery of the applicable Open Market Offer Notice or Stockholder Notice or at such other time as Buyer and the applicable Stockholder shall mutually agree in writing. Notwithstanding the foregoing, any obligation of Buyer and a Stockholder to participate in any Transfer of Company Common Stock pursuant to this Section 2.03(c) shall in all cases be conditioned on (A) receipt of any regulatory approvals required under applicable Law and (B) satisfaction of all other legal requirements (clauses (A) and (B), collectively, the “Conditions”), with the closing date for such Transfer of Company Common Stock not to occur until at least five (5) Business Days after receipt of any such regulatory approvals and satisfaction of such other legal requirements, unless otherwise agreed in writing by Buyer and such Stockholder. Each party agrees to use its commercially reasonable efforts to secure any regulatory approvals required under applicable Law in connection with any Transfer of Company Common Stock to Buyer hereunder. If the Conditions are not satisfied within thirty (30) days of Buyer’s delivery of an Open Market Offer Notice or a ROFR Purchase Notice, as applicable, then Buyer shall be deemed to have not delivered such notice and a Stockholder shall be permitted to Transfer Company Common Stock pursuant to the terms of Section 2.03(c)(ii)(3) or Section 2.03(c)(iii)(4), as applicable. At any closing involving the Transfer of Company Common Stock to Buyer, a Stockholder shall deliver its Company Common Stock being Transferred under this Section 2.03, duly endorsed, or accompanied by written instruments of Transfer in form reasonably satisfactory to Buyer and duly executed by such Stockholder. Such Company Common Stock shall be free and clear of all Encumbrances (other than Encumbrances created by applicable Law (including securities Laws) or by this Agreement), such Stockholder shall have good and valid title thereto and be the sole record owner thereof, and such Stockholder shall so represent and warrant in writing to Buyer. (vi) Each Stockholder shall promptly notify Buyer in writing after such Stockholder (A) has Transferred any shares of Company Common Stock to any Person or (B) becomes aware of any change to the information with respect to such Stockholder set forth in the Schedule 13D (as may be amended from time to time) to be filed with the SEC by Buyer or any of its Affiliates with respect to the shares of Company Common Stock beneficially owned by such Stockholder. (vii) In connection with a proposed Transfer of Company Common Stock to which this Section 2.03(c) applies, Buyer may at any time at its option assign its rights under this Section 2.03(c) to, and substitute, any Affiliate for itself to act as the purchaser or to exercise any other right of Buyer, or to satisfy any obligation of Buyer, under this Section 2.03(c), provided that no such assignment shall relieve Buyer of any of its obligations hereunder. (viii) Notwithstanding anything to the contrary in this Section 2.03(c), to the extent that FSH Transfers any shares of Company Common Stock pursuant to this Section 2.03(c), FSH shall (a) first, Transfer any such shares that are pledged pursuant to the FSC Pledge Agreement and, second, once all such shares have been Transferred or FSH no longer holds any shares of Company Common Stock that are pledged pursuant to the FSC Pledge Agreement, Transfer any shares of Company Common Stock that are not pledged pursuant to the FSC Pledge Agreement, and (b) deposit the proceeds from the Transfer of any shares of Company Common Stock that are pledged pursuant to the FSC Pledge Agreement in the FSC Collateral Account in accordance with the terms of the FSC Control Agreement.

Open Market Offer; Right of First Refusal. (i) If a Stockholder proposes to make an Authorized Transfer, such Stockholder shall first make an offering of such shares of Company Common Stock to Buyer in accordance with the provisions of Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. (ii) If a Stockholder proposes to Transfer Subject Stock in the open market pursuant to a Rule 10b5-1 Plan or a limit order executed by a broker: (1) The Stockholder shall give written notice (the “Open Market Notice”) to Buyer stating its bona fide intention to enter into a Rule 10b5-1 Plan or to instruct a broker to execute a limit order in the open market, as applicable, and specifying (A) the number of shares of Company Common Stock which the Stockholder proposes to sell pursuant to such Rule 10b5-1 Plan or limit order (the “Open Market Shares”) and (B) the lowest price per share of Company Common Stock at which such Stockholder will sell such Open Market Shares pursuant to such Rule 10b-5-1 Plan or limit order (the “Open Market Limit Price”) and provide a copy of such Rule 10b5-1 Plan or limit order to Buyer. (2) Upon the later of receipt of the Open Market Notice and a copy of such Rule 10b5-1 Plan or limit order, Buyer shall have one (1) Business Day (the “Open Market Offer Notice Period”) to offer to purchase some or all of the Open Market Shares by delivering a written notice (an “Open Market Offer Notice”) to the Stockholder that delivered the Open Market Notice stating the number of Open Market Shares it has elected to purchase at a purchase price per share equal to the Open Market Limit Price; provided that, in the case of any Open Market Offer Notice delivered pursuant to the second sentence of Section 2.03(b), Buyer shall have one (1) Business Day after the Closing Date to deliver an Open Market Offer Notice with respect to the Open Market Shares set forth in such Open Market Offer Notice. Upon the delivery of an Open Market Offer Notice pursuant to this clause (2) or clause (3) below, Buyer shall then be obligated to purchase, and the Stockholder shall then be obligated to sell, the Open Market Shares specified in such notice at a price per share equal to the Open Market Limit Price on the terms and conditions above and as contemplated by clauses (iv) and (v) of this Section 2.03(c). (3) If no Open Market Offer Notice is received prior to the end of the Open Market Offer Notice Period (or if an Open Market Offer Notice proposes to purchase less than all of the Open Market Shares, the remaining Open Market Shares) then the Stockholder may (A) in the case of the establishment of a Rule 10b5-1 Plan, commit to sell the applicable Open Market Shares pursuant to a Rule 10b5-1 Plan at a price per Open Market Share that is no less than the Open Market Limit Price and thereafter such Open Market Shares shall not be subject to the restrictions on Transfer set forth in this Section 2.03(c)(ii) so long as they remain subject to the Rule 10b5-1 Plan or (B) in the case of a limit order, instruct a broker or brokers to execute the order with respect to the Open Market Shares (which may be sold in the open market at a price per Open Market Share that is no less than the Open Market Limit Price without further restriction under this Section 2.03(c)(ii) during the duration of such limit order); provided that, for so long as any such Open Market Shares remain unsold during the duration of such Rule 10b5-1 Plan or limit order, Buyer shall have the right to purchase any such Open Market Shares at the higher of (x) the Open Market Limit Price and (y) the closing price of shares of Company Common Stock on Nasdaq (or any successor primary market) as of the Business Day immediately prior to the date of purchase minus $0.10 (such higher price, the “Interim Offer Price”) by delivering to such Stockholder an Open Market Offer Notice stating the number of Open Market Shares it has elected to purchase at the Interim Offer Price. If the Stockholder does not enter into a Rule 10b5-1 Plan or instruct a broker with respect to a limit order within five (5) Business Days of the date of receipt of the Open Market Notice by Buyer, then the rights and obligations provided under this Section 2.03(c) shall be deemed to be revived and the applicable Open Market Shares shall not be offered unless first reoffered to Buyer in accordance with Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. For the avoidance of doubt, the applicable Stockholder shall not Transfer any shares of Company Common Stock pursuant to this Section 2.03(c)(ii) at a price per share that is less than the Open Market Limit Price. (4) If no Person has, as of the Business Day immediately prior to the date of a Transfer to be made by an order executed by a broker, filed a Schedule 13D on EXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock, and such Transfer will be executed through a broker via voice trade (including in the case where a broker seeks to execute a block trade where the proposed transferee did not directly contact, and was not specifically contacted by, or at the direction of, a Stockholder), the Stockholder will cause the executing broker to confirm that the proposed transferee is not, and will not become as a result of such Transfer, a holder of more than five percent (5%) of the issued and outstanding shares of Company Common Stock. To the extent that any Person has, as of the Business Day immediately prior to the date of a Transfer to be made by an order executed by a broker, filed a Schedule 13D on EXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock, the Stockholders shall not execute any such Transfer electronically and shall only execute such Transfer through a broker via voice trade where the broker has confirmed that the proposed transferee is not, and will not become as a result of such Transfer, a holder of more than five percent (5%) of the issued and outstanding shares of Company Common Stock. (iii) If a Stockholder proposes to Transfer Subject Stock in a private transaction or transactions involving one or more Specified Persons or Acceptable Persons: (1) Such Stockholder shall give written notice (the “Stockholder Notice”) to Buyer stating its bona fide intention to sell the shares of Company Common Stock in such a transaction and providing (A) the number of shares of Company Common Stock which the Stockholder proposes to sell (the “ROFR Shares”) and whether the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares, (B) the per share purchase price in cash at which such Stockholder is prepared to Transfer such ROFR Shares to such Specified Person(s) or Acceptable Person(s) (the “Sale Price”), (C) the identity of the Specified Person(s) or Acceptable Person(s), (D) the proposed Transfer date, if known, (E) a copy of any written proposal or letter of intent or other agreement relating to the proposed Transfer and (F) all other material terms and conditions, if any, in connection with such proposed Transfer. (2) Upon receipt of the Stockholder Notice, Buyer shall have two (2) Business Days (the “ROFR Notice Period”) to elect to purchase all (and not less than all, unless the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares) of the ROFR Shares by delivering a written notice (a “ROFR Purchase Notice”) to the Stockholder that delivered the Stockholder Notice stating that it offers to purchase such ROFR Shares (or a portion of the ROFR Shares if the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares) at the Sale Price and on the other terms and conditions set forth in the Stockholder Notice. Any ROFR Purchase Notice shall be binding upon delivery and irrevocable without the consent of the applicable Stockholder. (3) Upon the delivery of the ROFR Purchase Notice, Buyer shall then be obligated to purchase, and the Stockholder shall then be obligated to sell, the ROFR Shares specified in such notice at the Sale Price and on the other terms and conditions set forth in the Stockholder Notice and as contemplated by clauses (iv) and (v) of this Section 2.03(c). (4) If Buyer does not deliver a ROFR Purchase Notice in accordance with Section 2.03(c)(iii)(2), the Stockholder may, during the thirty (30) day period following the expiration of the ROFR Notice Period, enter into an agreement for the sale of all the ROFR Shares to any Specified Person or Acceptable Person at a price in cash not less than the Sale Price set forth in the applicable Stockholder Notice delivered by such Stockholder; provided that, if such Specified Person is not an Acceptable Person, such Specified Person shall represent and warrant to such Stockholder in such agreement that such Specified Person, as of the Business Day immediately prior to the date of such sale, has not filed and will not, as a result of such sale, be required to file, a Schedule 13D on EXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock. If the Stockholder does not enter into an agreement for the sale of the ROFR Shares within such period or, if such agreement is not consummated within sixty (60) days of the execution thereof (which period shall be extended solely to the extent needed to obtain any required governmental approvals, provided that the Stockholder shall have used commercially reasonable efforts to obtain such approval in a timely manner), the rights and obligations provided under this Section 2.03(c) shall be deemed to be revived and such ROFR Shares shall not be offered unless first reoffered to Buyer in accordance with Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. (iv) In connection with the consummation of any Transfer of Company Common Stock pursuant to this Section 2.03(c), upon Buyer’s written request, the Transferring Stockholder shall deliver to Buyer a “big boy” letter duly executed by such Stockholder in the form attached hereto as Exhibit A. (v) The closing of any Transfer of Company Common Stock to Buyer pursuant to this Section 2.03(c) shall be held, in the case of Section 2.03(c)(ii), no later than five (5) Business Days after the delivery of the applicable Open Market Offer Notice and, in the case of Section 2.03(c)(iii), no later than ten (10) Business Days after the delivery of the applicable Open Market Offer Notice or Stockholder Notice or at such other time as Buyer and the applicable Stockholder shall mutually agree in writing. Notwithstanding the foregoing, any obligation of Buyer and a Stockholder to participate in any Transfer of Company Common Stock pursuant to this Section 2.03(c) shall in all cases be conditioned on (A) receipt of any regulatory approvals required under applicable Law and (B) satisfaction of all other legal requirements (clauses (A) and (B), collectively, the “Conditions”), with the closing date for such Transfer of Company Common Stock not to occur until at least five (5) Business Days after receipt of any such regulatory approvals and satisfaction of such other legal requirements, unless otherwise agreed in writing by Buyer and such Stockholder. Each party agrees to use its commercially reasonable efforts to secure any regulatory approvals required under applicable Law in connection with any Transfer of Company Common Stock to Buyer hereunder. If the Conditions are not satisfied within thirty (30) days of Buyer’s delivery of an Open Market Offer Notice or a ROFR Purchase Notice, as applicable, then Buyer shall be deemed to have not delivered such notice and a Stockholder shall be permitted to Transfer Company Common Stock pursuant to the terms of Section 2.03(c)(ii)(3) or Section 2.03(c)(iii)(4), as applicable. At any closing involving the Transfer of Company Common Stock to Buyer, a Stockholder shall deliver its Company Common Stock being Transferred under this Section 2.03, duly endorsed, or accompanied by written instruments of Transfer in form reasonably satisfactory to Buyer and duly executed by such Stockholder. Such Company Common Stock shall be free and clear of all Encumbrances (other than Encumbrances created by applicable Law (including securities Laws) or by this Agreement), such Stockholder shall have good and valid title thereto and be the sole record owner thereof, and such Stockholder shall so represent and warrant in writing to Buyer. (vi) Each Stockholder shall promptly notify Buyer in writing after such Stockholder (A) has Transferred any shares of Company Common Stock to any Person or (B) becomes aware of any change to the information with respect to such Stockholder set forth in the Schedule 13D (as may be amended from time to time) to be filed with the SEC by Buyer or any of its Affiliates with respect to the shares of Company Common Stock beneficially owned by such Stockholder. (vii) In connection with a proposed Transfer of Company Common Stock to which this Section 2.03(c) applies, Buyer may at any time at its option assign its rights under this Section 2.03(c) to, and substitute, any Affiliate for itself to act as the purchaser or to exercise any other right of Buyer, or to satisfy any obligation of Buyer, under this Section 2.03(c), provided that no such assignment shall relieve Buyer of any of its obligations hereunder. (viii) Notwithstanding anything to the contrary in this Section 2.03(c), to the extent that FSH Transfers any shares of Company Common Stock pursuant to this Section 2.03(c), FSH shall (a) first, Transfer any such shares that are pledged pursuant to the FSC FSFR Pledge Agreement and, second, once all such shares have been Transferred or FSH no longer holds any shares of Company Common Stock that are pledged pursuant to the FSC FSFR Pledge Agreement, Transfer any shares of Company Common Stock that are not pledged pursuant to the FSC FSFR Pledge Agreement, and (b) deposit the proceeds from the Transfer of any shares of Company Common Stock that are pledged pursuant to the FSC FSFR Pledge Agreement in the FSC FSFR Collateral Account in accordance with the terms of the FSC FSFR Control Agreement.

Open Market Offer; Right of First Refusal. (i) If a Stockholder proposes to make an Authorized Transfer, such Stockholder shall first make an offering of such shares of Company Common Stock to Buyer in accordance with the provisions of Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. (ii) If a Stockholder proposes to Transfer Subject Stock in the open market pursuant to a Rule 10b5-1 Plan or a limit order executed by a broker: (1) The Stockholder shall give written notice (the “Open Market Notice”) to Buyer stating its bona fide intention to enter into a Rule 10b5-1 Plan or to instruct a broker to execute a limit order in the open market, as applicable, and specifying (A) the number of shares of Company Common Stock which the Stockholder proposes to sell pursuant to such Rule 10b5-1 Plan or limit order (the “Open Market Shares”) and (B) the lowest price per share of Company Common Stock at which such Stockholder will sell such Open Market Shares pursuant to such Rule 10b-5-1 Plan or limit order (the “Open Market Limit Price”) and provide a copy of such Rule 10b5-1 Plan or limit order to Buyer. (2) Upon the later of receipt of the Open Market Notice and a copy of such Rule 10b5-1 Plan or limit order, Buyer shall have one (1) Business Day (the “Open Market Offer Notice Period”) to offer to purchase some or all of the Open Market Shares by delivering a written notice (an “Open Market Offer Notice”) to the Stockholder that delivered the Open Market Notice stating the number of Open Market Shares it has elected to purchase at a purchase price per share equal to the Open Market Limit Price; provided that, in the case of any Open Market Offer Notice delivered pursuant to the second sentence of Section 2.03(b), Buyer shall have one (1) Business Day after the Closing Date to deliver an Open Market Offer Notice with respect to the Open Market Shares set forth in such Open Market Offer Notice. Upon the delivery of an Open Market Offer Notice pursuant to this clause (2) or clause (3) below, Buyer shall then be obligated to purchase, and the Stockholder shall then be obligated to sell, the Open Market Shares specified in such notice at a price per share equal to the Open Market Limit Price on the terms and conditions above and as contemplated by clauses (iv) and (v) of this Section 2.03(c). (3) If no Open Market Offer Notice is received prior to the end of the Open Market Offer Notice Period (or if an Open Market Offer Notice proposes to purchase less than all of the Open Market Shares, the remaining Open Market Shares) then the Stockholder may (A) in the case of the establishment of a Rule 10b5-1 Plan, commit to sell the applicable Open Market Shares pursuant to a Rule 10b5-1 Plan at a price per Open Market Share that is no less than the Open Market Limit Price and thereafter such Open Market Shares shall not be subject to the restrictions on Transfer set forth in this Section 2.03(c)(ii) so long as they remain subject to the Rule 10b5-1 Plan or (B) in the case of a limit order, instruct a broker or brokers to execute the order with respect to the Open Market Shares (which may be sold in the open market at a price per Open Market Share that is no less than the Open Market Limit Price without further restriction under this Section 2.03(c)(ii) during the duration of such limit order); provided that, for so long as any such Open Market Shares remain unsold during the duration of such Rule 10b5-1 Plan or limit order, Buyer shall have the right to purchase any such Open Market Shares at the higher of (x) the Open Market Limit Price and (y) the closing price of shares of Company Common Stock on Nasdaq (or any successor primary market) as of the Business Day immediately prior to the date of purchase minus $0.10 (such higher price, the “Interim Offer Price”) by delivering to such Stockholder an Open Market Offer Notice stating the number of Open Market Shares it has elected to purchase at the Interim Offer Price. If the Stockholder does not enter into a Rule 10b5-1 Plan or instruct a broker with respect to a limit order within five (5) Business Days of the date of receipt of the Open Market Notice by Buyer, then the rights and obligations provided under this Section 2.03(c) shall be deemed to be revived and the applicable Open Market Shares shall not be offered unless first reoffered to Buyer in accordance with Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. For the avoidance of doubt, the applicable Stockholder shall not Transfer any shares of Company Common Stock pursuant to this Section 2.03(c)(ii) at a price per share that is less than the Open Market Limit Price. (4) If no Person has, as of the Business Day immediately prior to the date of a Transfer to be made by an order executed by a broker, filed a Schedule 13D on EXXXX XXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock, and such Transfer will be executed through a broker via voice trade (including in the case where a broker seeks to execute a block trade where the proposed transferee did not directly contact, and was not specifically contacted by, or at the direction of, a Stockholder), the Stockholder will cause the executing broker to confirm that the proposed transferee is not, and will not become as a result of such Transfer, a holder of more than five percent (5%) of the issued and outstanding shares of Company Common Stock. To the extent that any Person has, as of the Business Day immediately prior to the date of a Transfer to be made by an order executed by a broker, filed a Schedule 13D on EXXXX XXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock, the Stockholders shall not execute any such Transfer electronically and shall only execute such Transfer through a broker via voice trade where the broker has confirmed that the proposed transferee is not, and will not become as a result of such Transfer, a holder of more than five percent (5%) of the issued and outstanding shares of Company Common Stock. (iii) If a Stockholder proposes to Transfer Subject Stock in a private transaction or transactions involving one or more Specified Persons or Acceptable Persons: (1) Such Stockholder shall give written notice (the “Stockholder Notice”) to Buyer stating its bona fide intention to sell the shares of Company Common Stock in such a transaction and providing (A) the number of shares of Company Common Stock which the Stockholder proposes to sell (the “ROFR Shares”) and whether the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares, (B) the per share purchase price in cash at which such Stockholder is prepared to Transfer such ROFR Shares to such Specified Person(s) or Acceptable Person(s) (the “Sale Price”), (C) the identity of the Specified Person(s) or Acceptable Person(s), (D) the proposed Transfer date, if known, (E) a copy of any written proposal or letter of intent or other agreement relating to the proposed Transfer and (F) all other material terms and conditions, if any, in connection with such proposed Transfer. (2) Upon receipt of the Stockholder Notice, Buyer shall have two (2) Business Days (the “ROFR Notice Period”) to elect to purchase all (and not less than all, unless the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares) of the ROFR Shares by delivering a written notice (a “ROFR Purchase Notice”) to the Stockholder that delivered the Stockholder Notice stating that it offers to purchase such ROFR Shares (or a portion of the ROFR Shares if the Specified Person(s) or Acceptable Person(s) is (are) willing to purchase less than all of the ROFR Shares) at the Sale Price and on the other terms and conditions set forth in the Stockholder Notice. Any ROFR Purchase Notice shall be binding upon delivery and irrevocable without the consent of the applicable Stockholder. (3) Upon the delivery of the ROFR Purchase Notice, Buyer shall then be obligated to purchase, and the Stockholder shall then be obligated to sell, the ROFR Shares specified in such notice at the Sale Price and on the other terms and conditions set forth in the Stockholder Notice and as contemplated by clauses (iv) and (v) of this Section 2.03(c). (4) If Buyer does not deliver a ROFR Purchase Notice in accordance with Section 2.03(c)(iii)(2), the Stockholder may, during the thirty (30) day period following the expiration of the ROFR Notice Period, enter into an agreement for the sale of all the ROFR Shares to any Specified Person or Acceptable Person at a price in cash not less than the Sale Price set forth in the applicable Stockholder Notice delivered by such Stockholder; provided that, if such Specified Person is not an Acceptable Person, such Specified Person shall represent and warrant to such Stockholder in such agreement that such Specified Person, as of the Business Day immediately prior to the date of such sale, has not filed and will not, as a result of such sale, be required to file, a Schedule 13D on EXXXX XXXXX reporting ownership of more than five percent (5%) of the shares of Company Common Stock. If the Stockholder does not enter into an agreement for the sale of the ROFR Shares within such period or, if such agreement is not consummated within sixty (60) days of the execution thereof (which period shall be extended solely to the extent needed to obtain any required governmental approvals, provided that the Stockholder shall have used commercially reasonable efforts to obtain such approval in a timely manner), the rights and obligations provided under this Section 2.03(c) shall be deemed to be revived and such ROFR Shares shall not be offered unless first reoffered to Buyer in accordance with Section 2.03(c)(ii) or Section 2.03(c)(iii), as applicable. (iv) In connection with the consummation of any Transfer of Company Common Stock pursuant to this Section 2.03(c), upon Buyer’s written request, the Transferring Stockholder shall deliver to Buyer a “big boy” letter duly executed by such Stockholder in the form attached hereto as Exhibit A. (v) The closing of any Transfer of Company Common Stock to Buyer pursuant to this Section 2.03(c) shall be held, in the case of Section 2.03(c)(ii), no later than five (5) Business Days after the delivery of the applicable Open Market Offer Notice and, in the case of Section 2.03(c)(iii), no later than ten (10) Business Days after the delivery of the applicable Open Market Offer Notice or Stockholder Notice or at such other time as Buyer and the applicable Stockholder shall mutually agree in writing. Notwithstanding the foregoing, any obligation of Buyer and a Stockholder to participate in any Transfer of Company Common Stock pursuant to this Section 2.03(c) shall in all cases be conditioned on (A) receipt of any regulatory approvals required under applicable Law and (B) satisfaction of all other legal requirements (clauses (A) and (B), collectively, the “Conditions”), with the closing date for such Transfer of Company Common Stock not to occur until at least five (5) Business Days after receipt of any such regulatory approvals and satisfaction of such other legal requirements, unless otherwise agreed in writing by Buyer and such Stockholder. Each party agrees to use its commercially reasonable efforts to secure any regulatory approvals required under applicable Law in connection with any Transfer of Company Common Stock to Buyer hereunder. If the Conditions are not satisfied within thirty (30) days of Buyer’s delivery of an Open Market Offer Notice or a ROFR Purchase Notice, as applicable, then Buyer shall be deemed to have not delivered such notice and a Stockholder shall be permitted to Transfer Company Common Stock pursuant to the terms of Section 2.03(c)(ii)(3) or Section 2.03(c)(iii)(4), as applicable. At any closing involving the Transfer of Company Common Stock to Buyer, a Stockholder shall deliver its Company Common Stock being Transferred under this Section 2.03, duly endorsed, or accompanied by written instruments of Transfer in form reasonably satisfactory to Buyer and duly executed by such Stockholder. Such Company Common Stock shall be free and clear of all Encumbrances (other than Encumbrances created by applicable Law (including securities Laws) or by this Agreement), such Stockholder shall have good and valid title thereto and be the sole record owner thereof, and such Stockholder shall so represent and warrant in writing to Buyer. (vi) Each Stockholder shall promptly notify Buyer in writing after such Stockholder (A) has Transferred any shares of Company Common Stock to any Person or (B) becomes aware of any change to the information with respect to such Stockholder set forth in the Schedule 13D (as may be amended from time to time) to be filed with the SEC by Buyer or any of its Affiliates with respect to the shares of Company Common Stock beneficially owned by such Stockholder. (vii) In connection with a proposed Transfer of Company Common Stock to which this Section 2.03(c) applies, Buyer may at any time at its option assign its rights under this Section 2.03(c) to, and substitute, any Affiliate for itself to act as the purchaser or to exercise any other right of Buyer, or to satisfy any obligation of Buyer, under this Section 2.03(c), provided that no such assignment shall relieve Buyer of any of its obligations hereunder. (viii) Notwithstanding anything to the contrary in this Section 2.03(c), to the extent that FSH Transfers any shares of Company Common Stock pursuant to this Section 2.03(c), FSH shall (a) first, Transfer any such shares that are pledged pursuant to the FSC Pledge Agreement and, second, once all such shares have been Transferred or FSH no longer holds any shares of Company Common Stock that are pledged pursuant to the FSC Pledge Agreement, Transfer any shares of Company Common Stock that are not pledged pursuant to the FSC Pledge Agreement, and (b) deposit the proceeds from the Transfer of any shares of Company Common Stock that are pledged pursuant to the FSC Pledge Agreement in the FSC Collateral Account in accordance with the terms of the FSC Control Agreement.