Common use of Optional Purchase at Fair Value Clause in Contracts

Optional Purchase at Fair Value. If the successor entity does not assume the obligations of the Company under this Warrant as set forth in subsection (b) above, the Company may, at its option, elect to purchase and Holder may, at its option, require the Company to purchase this Warrant at its “Fair Value.” For purposes of this Warrant, “Fair Value” shall mean that value determined by the parties using a Black-Scholes Option-Pricing Model with the following assumptions: (A) a risk-free interest rate equal to the rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant, (C) a dividend yield equal to dividends declared on the underlying Common Stock during the term of this Warrant, and (D) a volatility factor of the expected market price of the Company’s Common Stock of: (1) in the case of an Acquisition in which the acquirer is publicly traded on a national securities exchange, the implied volatility of the common stock of such acquirer over the one-year period prior to the Acquisition, (2) in the case of an Acquisition in which the acquirer is a non-public company, the implied volatility of an average of not less than three publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The purchase price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments, but the parties may take such contingencies and adjustments into account in determining the purchase price. This subsection shall apply to the non-cash portion of an Acquisition subject to subsection (b) above, in the case of such an Acquisition which is partly or entirely property other than cash.

Optional Purchase at Fair Value. If the successor entity (if applicable in such Acquisition) does not assume the obligations of the Company under this Warrant as set forth in subsection (b) above, the Company may, at its option, elect to purchase and Holder may, at its option, require the Company to purchase this Warrant at its “Fair Value.” For purposes of this Warrant, “Fair Value” shall mean that value determined by the parties using a Black-Scholes Option-Pricing Model with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this WarrantWarrant as of the date of the Acquisition, (C) a an annual dividend yield equal to dividends declared on the underlying Common Stock during the term of this WarrantWarrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s Common Stock of: (1) in the case of an Acquisition in which the acquirer is publicly traded on a national securities exchange, the implied volatility of the common stock of such acquirer over the one-year period prior to the Acquisition, (2) in the case of an Acquisition in which the acquirer is a non-public company, the implied volatility of an average of not less than three publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The purchase price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments, but the parties may take such contingencies and adjustments into account in determining the purchase price. This subsection shall apply to the non-cash portion of an Acquisition subject to subsection (b) above, in the case of such an Acquisition which is partly or entirely property cash and partly other than cashproperty.

Optional Purchase at Fair Value. If the successor entity (if applicable in such Acquisition) does not assume the obligations of the Company under this Warrant as set forth in subsection (b) above, the Company may, at its option, elect to purchase and Holder may, at its option, require the Company to purchase this Warrant at its “"Fair Value.” " For purposes of this Warrant, “"Fair Value” " shall mean that value determined by the parties using a Black-Scholes Option-Pricing Model with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this WarrantWarrant as of the date of the Acquisition, (C) a an annual dividend yield equal to dividends declared on the underlying Common Stock during the term of this WarrantWarrant (calculated on an annual basis), and (D) a volatility factor of the expected market price of the Company’s 's Common Stock of: of (1) in the case of an Acquisition in which the acquirer is publicly traded on a national securities exchange, the implied volatility of the common stock of such acquirer over the one-year period prior to the Acquisition, (2) in the case of an Acquisition in which the acquirer is a non-public company, the implied volatility of an average of not less than three publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The purchase price determined in accordance with the above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments, but the parties may take such contingencies and adjustments into account in determining the purchase price. This subsection shall apply to the non-cash portion of an Acquisition subject to subsection (b) above, in the case of such an Acquisition which is partly or entirely property cash and partly other than cashproperty.

Optional Purchase at Fair Value. If In the successor entity event of an Acquisition or Asset Transfer, if in spite of the Company’s best efforts, the Acquirer does not assume the obligations of the Company under this Warrant as set forth in subsection (b) Section 7 above, the Company may, at its option, elect to purchase and Holder may, at its option, require the Company shall be required to purchase this Warrant from the Holder at its “Fair Value.” For purposes (the “Warrant Repurchase Amount”), prior to or contemporaneously with the consummation of this Warrant, any such Acquisition or Asset Transfer. “Fair Value” shall mean that value determined by the parties using a Black-Scholes Option-Pricing Model with the following assumptions: (A) a risk-free interest rate equal to the rate at the time of the closing of the Acquisition or Asset Transfer (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the days remaining term prior to the Expiration Date of this Warrant, (C) a an annual dividend yield equal to dividends declared the annualized dividend yield on the underlying Common Stock during the term of this Warrant, and (D) a volatility factor of the expected market price of the Company’s Common Stock of: (1) in the case of an Acquisition or Asset Transfer in which the acquirer Acquirer is publicly traded on a national securities exchange, the implied volatility of the common stock of such acquirer Acquirer over the one-year period prior to the AcquisitionAcquisition or Asset Transfer, (2) in the case of an Acquisition or Asset Transfer in which the acquirer Acquirer is a non-public company, the implied volatility of an average of not less than three publicly-traded companies in the same or similar industry to the Company with such companies having similar revenues. The purchase price determined in accordance with payment of the above Warrant Repurchase Amount shall be paid upon made in cash in the initial event that the Acquisition or Asset Transfer results in the Company or the stockholders of the Company receiving cash from the Acquirer at the closing of the transaction, and shall be made in shares in the Acquirer (with the value of each such share being the transaction value as provided in the transaction documents) in the event that the Acquisition or Asset Transfer results in the Company or the stockholders of the Company receiving shares of the Acquirer or other entity at the closing of the transaction. In the event that the stockholders of the Company receive both cash and shares at the closing of the transaction, the payment of the Warrant Repurchase Amount to the Holder shall also be made in both cash and shares in the same proportion as the consideration received by the holders of Common Stock. Unless the holders of two-thirds in interest of the Common Warrants consent in writing to a different treatment, payment of the Warrant Repurchase Amount prior to or contemporaneously with the Acquisition or Asset Transfer shall be a condition to the consummation of such Acquisition or Asset Transfer by the Company, and the Warrant Repurchase Amount shall not be subject to any post-Acquisition or post-Asset Transfer closing contingencies or adjustments, but the parties may take such contingencies and adjustments into account in determining the purchase price. This subsection Section 8 shall apply to the non-cash portion of an Acquisition or Asset Transfer subject to subsection (b) Section 7 above, in the case of such an Acquisition or Asset Transfer which is partly or entirely property cash and partly other than cashproperty.