Common use of Lapse of Repurchase Right Clause in Contracts

Lapse of Repurchase Right. (i) Notwithstanding any provisions of the Plan to the contrary, the Right of Repurchase with respect to such number of the Restricted Shares that, (1) when considered in connection with all other payments to be made to the Purchaser in connection with the Closing, would result in the Purchaser receiving the amount he could receive without the acceleration of the Restricted Shares (and all other applicable payments) being subject to the excise tax provisions of Section 4999 of the Code, and (2) such amount as described in the immediately preceding proviso (1), when combined with all other “applicable employee remuneration” (within the meaning of Code Section 162(m)(4)) payable to the Purchaser for such taxable year, shall not cause the applicable employee remuneration to materially exceed $1,000,000, shall lapse upon the Closing, so long as the Purchaser continues to be a Service Provider at all times from the Effective Date through the Closing (such number of Restricted Shares as shall so vest upon the Closing to be referred to herein as the “Accelerated Shares”). Except as otherwise provided in Section 2(b)(ii), the Right of Repurchase with respect to the remaining Restricted Shares (i.e., all Restricted Shares other than the Accelerated Shares) shall lapse with respect to 33 1/3 percent (33 1/3%) of such remaining Restricted Shares on each of the first, second and third anniversaries of the Closing, so long as the Purchaser continues to be a Service Provider at all times from the Effective Date through each such anniversary. The determination of the number of Accelerated Shares shall be made by an accounting firm selected by the Company and consented to by the Purchaser, which consent shall not be unreasonably withheld. (ii) Notwithstanding Section 2(b)(i), following the Closing, all of the remaining Restricted Shares shall earlier vest, and the Right of Repurchase shall lapse, upon the first to occur of (i) the termination of the Purchaser’s employment by the Company without Cause or as the result of the Company’s non-renewal of the Purchaser’s New Employment Agreement; (ii) the termination of the Purchaser’s employment with the Company by him for Good Reason; or (iii) the termination of the Purchaser’s employment with the Company as the result of his death or Disability, in each instance so long as the Purchaser continues to be employed by the Company at all times from the Effective Date through the date of the applicable vesting event.

Lapse of Repurchase Right. (i) Notwithstanding any provisions of the Plan to the contrary, the Right of Repurchase with respect to such number of the Restricted Shares that, (1) when considered in connection with all other payments to be made to the Purchaser in connection with the Closing, would result in the Purchaser receiving the maximum amount he could receive without the acceleration of the Restricted Shares (and all other applicable payments) being subject to the excise tax provisions of Section 4999 of the Code, and (2) such amount as described in the immediately preceding proviso (1), when combined with all other “applicable employee remuneration” (within the meaning of Code Section 162(m)(4)) payable to the Purchaser for such taxable year, shall not cause the applicable employee remuneration to materially exceed $1,000,000, shall lapse upon the Closing, so long as the Purchaser continues to be a Service Provider at all times from the Effective Date through the Closing (such number of Restricted Shares as shall so vest upon the Closing to be referred to herein as the “Accelerated Shares”). Except as otherwise provided in Section 2(b)(ii), the Right of Repurchase with respect to the remaining Restricted Shares (i.e., all Restricted Shares other than the Accelerated Shares) shall lapse with respect to 33 1/3 percent (33 1/3%) of such remaining Restricted Shares on each of the first, second and third anniversaries of the Closing, so long as the Purchaser continues to be a Service Provider at all times from the Effective Date through each such anniversary. The determination of the number of Accelerated Shares shall be made by an accounting firm selected by the Company and consented to by the Purchaser, which consent shall not be unreasonably withheld. (ii) Notwithstanding Section 2(b)(i), following the Closing, all of the remaining Restricted Shares shall earlier vest, and the Right of Repurchase shall lapse, upon the first to occur of (i) the termination of the Purchaser’s employment by the Company without Cause or as the result of the Company’s non-renewal of the Purchaser’s New Employment Agreement; (ii) the termination of the Purchaser’s employment with the Company by him for Good Reason; or (iii) the termination of the Purchaser’s employment with the Company as the result of his death or Disability, in each instance so long as the Purchaser continues to be employed by the Company at all times from the Effective Date through the date of the applicable vesting event.

Lapse of Repurchase Right. (i) Notwithstanding any provisions of the Plan to the contrary, the The Right of Repurchase with respect to such number of the Restricted Shares that, (1) when considered in connection with all other payments to be made to the Purchaser in connection with the Closing, would result in the Purchaser receiving the amount he could receive without the acceleration of the Restricted Shares (and all other applicable payments) being subject to the excise tax provisions of Section 4999 of the Code, and (2) such amount as described in the immediately preceding proviso (1), when combined with all other “applicable employee remuneration” (within the meaning of Code Section 162(m)(4)) payable to the Purchaser for such taxable year, shall not cause the applicable employee remuneration to materially exceed $1,000,000, shall lapse upon the Closing, so long as the Purchaser continues to be a Service Provider at all times from the Effective Date through the Closing (such number of Restricted Shares as shall so vest upon the Closing to be referred to herein as the “Accelerated Shares”). Except as otherwise provided in Section 2(b)(ii), the Right of Repurchase with respect to the remaining Restricted Shares (i.e., all Restricted Shares other than the Accelerated Shares) shall lapse with respect to 33 1/3 percent (33 1/3%) 20% of such remaining Restricted the Purchased Shares on each of the first, second and third anniversaries of the Closing, so long as the Purchaser continues to be a Service Provider at all times from the Effective Date through each such anniversary. The determination of the number of Accelerated Shares shall be made by an accounting firm selected by the Company and consented to by the Purchaser, which consent shall not be unreasonably withheld. (ii) Notwithstanding Section 2(b)(i), following the Closing, all of the remaining Restricted Shares shall earlier vestdate hereof, and the Right of Repurchase shall lapselapse with respect to an additional 20% of the Purchased Shares on January 1, 2006. The Right of Repurchase shall lapse with respect to an additional 5% of the Purchased Shares on the last date of each of the next twelve (12) quarters following January 1, 2006, provided that the Purchaser has performed continuous Service from the date hereof through such date. (ii) If the Company is subject to a Change of Control and, at the time of the consummation of such Change of Control, the Purchaser's Service has not terminated or the Service is terminated in connection with the Change of Control, then the Right of Repurchase shall lapse with respect to all of the then Restricted Shares upon the first consummation of such Change of Control. (iii) If the Company terminates the Purchaser's Service without Cause during the two-year period following the Effective Date or if the Purchaser terminates his Service for Good Reason during the two-year period following the Effective Date, then the Right of Repurchase shall lapse with respect to occur fifty percent (50%) of the then Restricted Shares. (iv) If the Company terminates the Purchaser's Service without Cause after the earlier of (ix) the termination second anniversary of the Effective Date or (y) the filing by the Company of a Registration Statement on Form S-1 (the "Cut-off Date") or if the Purchaser terminates his Service for Good Reason after the Cut-off Date, then the Right of Repurchase shall lapse with respect to all of the then Restricted Shares. (v) If the Purchaser's Service terminates as a result of the death or disability of the Purchaser’s employment by , then the Company without Cause or as the result Right of Repurchase shall lapse with respect to fifty percent (50%) of the Company’s non-renewal of the Purchaser’s New Employment Agreement; (ii) the termination of the Purchaser’s employment with the Company by him for Good Reason; or (iii) the termination of the Purchaser’s employment with the Company as the result of his death or Disability, in each instance so long as the Purchaser continues to be employed by the Company at all times from the Effective Date through the date of the applicable vesting eventthen Restricted Shares.