CONTRARY CONTAINED IN THIS
AGREEMENT, ALL REPURCHASES OF UNVESTED SHARES BY THE COMPANY PURSUANT TO THE
REPURCHASE OPTION SHALL BE SUBJECT TO APPLICABLE RESTRICTIONS CONTAINED IN THE
DELAWARE GENERAL CORPORATION LAW OR SUCH OTHER GOVERNING CORPORATE LAW AND IN
THE COMPANY'S AND ITS SUBSIDIARIES' DEBT AND EQUITY FINANCING AGREEMENTS.
IF
ANY SUCH RESTRICTIONS PROHIBIT (I) THE REPURCHASE OF UNVESTED SHARES HEREUNDER
WHICH THE COMPANY IS OTHERWISE ENTITLED OR REQUIRED TO MAKE OR (II) DIVIDENDS OR
OTHER
5
TRANSFERS OF FUNDS FROM ONE OR MORE SUBSIDIARIES TO THE COMPANY TO ENABLE SUCH
REPURCHASES, THEN THE COMPANY MAY MAKE SUCH REPURCHASES AS SOON AS IT IS
PERMITTED TO MAKE REPURCHASES OR RECEIVE FUNDS FROM SUBSIDIARIES UNDER SUCH
RESTRICTIONS.
(G)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IF THE FAIR MARKET VALUE OF UNVESTED SHARES IS FINALLY DETERMINED TO
BE AN AMOUNT AT LEAST 10% GREATER THAN THE PER SHARE REPURCHASE PRICE FOR SUCH
SHARE OF UNVESTED SHARES IN THE REPURCHASE NOTICE OR IN THE SUPPLEMENTAL
REPURCHASE NOTICE, EACH OF THE COMPANY AND THE INVESTORS SHALL HAVE THE RIGHT TO
REVOKE ITS EXERCISE OF THE REPURCHASE OPTION FOR ALL OR ANY PORTION OF THE
UNVESTED SHARES ELECTED TO BE REPURCHASED BY IT BY DELIVERING NOTICE OF SUCH
REVOCATION IN WRITING TO THE HOLDERS OF UNVESTED SHARES DURING THE THIRTY-DAY
PERIOD BEGINNING ON THE DATE THAT THE COMPANY AND/OR THE INVESTORS ARE GIVEN
WRITTEN NOTICE THAT THE FAIR MARKET VALUE OF A SHARE OF UNVESTED SHARES WAS
FINALLY DETERMINED TO BE AN AMOUNT AT LEAST 10% GREATER THAN THE PER SHARE
REPURCHASE PRICE FOR UNVESTED SHARES SET FORTH IN THE REPURCHASE NOTICE OR IN
THE SUPPLEMENTAL REPURCHASE NOTICE.
(H)
THE PROVISIONS OF THIS SECTION 3 WILL TERMINATE UPON THE
CONSUMMATION OF A SALE OF THE COMPANY.
4.
RESTRICTIONS ON TRANSFER OF SECURITIES.
(A)
TRANSFER OF SECURITIES.
THE HOLDERS OF SECURITIES SHALL NOT
TRANSFER ANY INTEREST IN ANY SECURITIES, EXCEPT PURSUANT TO (I) THE PROVISIONS
OF SECTION 3 HEREOF OR (II) THE PROVISIONS OF SECTION 4(B) BELOW.
(B)
CERTAIN PERMITTED TRANSFERS.
THE RESTRICTIONS IN THIS SECTION 4
WILL NOT APPLY WITH RESPECT TO ANY TRANSFER OF SECURITIES MADE (I) PURSUANT TO
APPLICABLE LAWS OF DESCENT AND DISTRIBUTION OR TO SUCH PERSON'S LEGAL GUARDIAN
IN THE CASE OF ANY MENTAL INCAPACITY OR AMONG SUCH PERSON'S FAMILY GROUP, OR
(II) SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THE REGISTRATION
AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN SECTION 3 THEREOF) OR ANY AGREEMENT
ENTERED INTO PURSUANT THERETO, OF SHARES OF COMMON STOCK THAT ARE VESTED SHARES,
BUT IN THE CASE OF THIS CLAUSE (II) ONLY AN AMOUNT OF SHARES OF COMMON STOCK
THAT ARE VESTED SHARES EQUAL TO THE PRODUCT OF (A) THE TOTAL SHARE NUMBER AND
(B) THE CUMULATIVE RATIO (AS OF THE DATE OF SUCH TRANSFER PURSUANT TO THIS
CLAUSE (II), AFTER GIVING EFFECT TO ANY PUBLIC SALE OF COMMON STOCK BY THE
INVESTORS ON SUCH DATE), LESS THE SUM OF (X) THE AGGREGATE NUMBER OF SHARES OF
SECURITIES TRANSFERRED BY PURCHASER IN