Common use of Repurchase of Unvested Restricted Shares Upon a Change in Control Clause in Contracts

Repurchase of Unvested Restricted Shares Upon a Change in Control. In the event of a Change in Control, the Company shall be obligated to repurchase each Unvested Purchased Share that has not either prior to or in connection with such Change in Control become a Vested Purchased Share. The repurchase price per Share with respect to each such Unvested Restricted Shares shall be equal to the lower of (i) the cost, without interest, initially paid by the Purchaser for such Unvested Restricted Shares or (ii) the Fair Market Value of a Share immediately prior to the Change in Control, and shall, on the date such Change in Control occurs, be made in cash; provided, that (i) if any payment for the Unvested Restricted Shares would violate or cause the Company to violate any covenant or breach any of the Company’s financing agreements or (ii) if the aggregate of payments to Purchaser in any 12-month period would exceed $1 million, the Company shall be permitted to pay for the Unvested Restricted Shares by issuing a subordinated promissory note to the Purchaser (or such other instrument as determined by the Board of Directors of the Company) bearing a reasonable rate of interest with a term of not more than 5 years. Notwithstanding anything in the immediately preceding sentence to the contrary, the Company may pay the repurchase price for such Unvested Restricted Shares by offsetting amounts outstanding under any indebtedness or obligations owed by the Purchaser or, as the case may be, any Permitted Transferee, to the Company or any Subsidiary of the Company. The repurchase of such Unvested Restricted Shares shall take place at the Company’s executive offices and, without any further action by the Purchaser or, as the case may be, Permitted Transferee, such Unvested Restricted Shares shall be assigned to the Company or its nominee, free and clear of any liens or encumbrances. The Company shall be entitled to receive representations and warranties with respect to title, authority and liens and other documentation from the Purchaser or, as the case may be, any Permitted Transferee, in connection with the repurchase of such Unvested Restricted Shares. Notwithstanding the foregoing, if any Repurchase Restrictions under any of the Facilities Agreements would prohibit the repurchase of Unvested Restricted Shares pursuant to this Section 3(g) upon a Change in Control, the payment of such repurchase price shall be deferred until such time as such Repurchase Restrictions no longer exist. The Company agrees that it shall not permit a Change in Control to be consummated unless in connection therewith, the Company shall have made adequate provision to repay a percentage of the repurchase price for Unvested Restricted Shares due in connection with such Change in Control equal to the percentage of the value of the equity interests held by members of the Xxxxxx Xxxxxx Group that were actually sold or disposed of by members of the Xxxxxx Xxxxxx Group in such Change in Control.