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, 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, 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.

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.