Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value ▇▇▇▇▇▇ shall have brought to the business of the Company, the Company shall deliver to ▇▇▇▇▇▇ the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, ▇▇▇▇▇▇ shall pay to each of ▇▇▇▇▇ and, if applicable, ▇▇▇▇▇▇▇, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and ▇▇▇▇▇▇’▇ Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall ▇▇▇▇▇▇ be required to pay an aggregate amount that would result in ▇▇▇▇▇▇ receiving less than his Trued-up Amount. (b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which ▇▇▇▇▇ and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the ▇▇▇▇▇ Ownership Percentage is less than 10% of the initial ▇▇▇▇▇ Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance with
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Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value ▇▇▇▇▇▇ shall have brought to the business of the Company, the Company shall deliver to ▇▇▇▇▇▇ the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, ▇▇▇▇▇▇ shall pay to each of ▇▇▇▇▇ and, if applicable, ▇▇▇▇▇▇▇, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and ▇▇▇▇▇▇’▇ Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall ▇▇▇▇▇▇ be required to pay an aggregate amount that would result in ▇▇▇▇▇▇ receiving less than his its Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which ▇▇▇▇▇ and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the ▇▇▇▇▇ Ownership Percentage is less than 10% of the initial ▇▇▇▇▇ Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance withwith Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value ▇▇▇▇▇▇ shall have brought to the business of the Company, the Company shall deliver to ▇▇▇▇▇▇ the Incentive Shares, if any; provided, however, that (i) in no event shall the Management Stockholders have the right to request such determination following the occurrence of any Sale Transaction and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and ▇▇▇▇▇, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals.
(ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and ▇▇▇▇▇, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and ▇▇▇▇▇, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and ▇▇▇▇▇, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, ▇▇▇▇▇ and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, ▇▇▇▇▇ and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and ▇▇▇▇▇, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or ▇▇▇▇▇, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and ▇▇▇▇▇, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, ▇▇▇▇▇ or the Company in respect of its determination.
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Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value ▇▇▇▇▇▇▇ shall have brought to the business of the Company, the Company shall deliver to ▇▇▇▇▇▇▇ the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, ▇▇▇▇▇▇▇ shall pay to each of ▇▇▇▇▇ and, if applicable, ▇▇▇▇▇▇▇Foxtrot, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and ▇▇▇▇▇▇’▇ Raymond’s Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall ▇▇▇▇▇▇▇ be required to pay an aggregate amount that would result in ▇▇▇▇▇▇▇ receiving less than his its Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which ▇▇▇▇▇ and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the ▇▇▇▇▇ Ownership Percentage is less than 10% of the initial ▇▇▇▇▇ Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance withwith Section 2(c) below and, promptly following the determination of such Equity Value, in consideration of the value ▇▇▇▇▇▇▇ shall have brought to the business of the Company, the Company shall deliver to ▇▇▇▇▇▇▇ the Incentive Shares, if any; provided, however, that (i) in no event shall the Management Stockholders have the right to request such determination following the occurrence of any Sale Transaction and (ii) the Management Stockholders shall not have the right to request such determination more than once. The Management Stockholders shall make such request by providing written notice thereof to the Company, such notice to by signed by each Management Stockholder.
(c) If the Management Stockholders shall have requested a determination of the Equity Value pursuant to Section 2(b) above, the Equity Value shall be determined as follows:
(i) During the ten-day period following the date on which such determination is requested, the Management Stockholders, on the one hand, and ▇▇▇▇, on the other, shall each submit to the other such party’s respective proposal as to the Equity Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Equity Value shall be equal to the average of such proposals.
(ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, the Management Stockholders, on the one hand, and ▇▇▇▇, on the other, shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Equity Value Appraiser”). In the event that such parties fail to jointly select the Appraiser within such period, then at the request of the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand, the American Arbitration Association shall provide them with a list of at least five Equity Value Appraiser candidates and each of the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand, shall be allowed to strike a number of names from the list and rank the remaining Equity Value Appraiser candidates in order of acceptance. The highest ranking Equity Value Appraiser candidate who remains on the list shall serve as the Appraiser. The Equity Value Appraiser shall be requested to make its determination within a period of 30 days after the deadline for submissions to be made by the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand, pursuant to Section 3(c)(iii), or as soon as practicable thereafter.
(iii) Within five Business Days of the appointment of the Appraiser, each of the Management Stockholders, on the one hand, and ▇▇▇▇, on the other hand, shall submit to the Equity Value Appraiser (A) its proposed determination of the Equity Value provided to the other party pursuant to Section 2(c)(i), (B) a list of factors that it believes to be relevant in the determination of the Equity Value, and (C) the reasons for that proposed value. In addition, each of the Management Stockholders, on the one hand, and ▇▇▇▇, on the other hand, shall at the same time deliver to the other a copy of any submission or information supplied by the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand, to the Equity Value Appraiser.
(iv) The Equity Value Appraiser shall then make its own determination (having requested such further information from the Management Stockholders, ▇▇▇▇ and/or the Company as it shall require) of the Equity Value.
(v) The Equity Value Appraiser shall certify to each of the Management Stockholders, ▇▇▇▇ and the Company (A) that, having considered the respective submissions of the Management Stockholders, on the one hand, and ▇▇▇▇, on the other hand, it has made its own determination of the Equity Value according to the principles of this Agreement and (B) the proposed value of which of the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand, it determines to be closer to the Equity Value. The value proposed by the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand, so certified by the Equity Value Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Equity Value for purposes of Section 2(b) above.
(vi) The fees and expenses of the Equity Value Appraiser shall be paid equally by the Management Stockholders, on the one hand, or ▇▇▇▇, on the other hand. The Equity Value Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Management Stockholders, on the one hand, and ▇▇▇▇, on the other hand, in the absence of manifest error. The Equity Value Appraiser shall have no liability to any of the Management Stockholders, ▇▇▇▇ or the Company in respect of its determination.
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Management Incentive. (a) Unless Incentive Shares have previously been delivered pursuant to Section 2(b) below, immediately prior to the consummation of a Sale Transaction, in consideration of the value ▇▇▇▇▇▇▇ shall have brought to the business of the Company, the Company shall deliver to ▇▇▇▇▇▇▇ the Incentive Shares. In the event that at any time following consummation of such Sale Transaction, there shall be any reduction of the purchase price, or the Stockholders or the Company are required to make any indemnification or similar payment in respect of such Sale Transaction, then within five business days of such reduction or indemnification payment, ▇▇▇▇▇▇▇ shall pay to each of ▇▇▇▇▇ and, if applicable, ▇▇▇▇▇▇▇, such amount as shall be necessary to ensure that the net amount that each Stockholder receives in respect of such Sale Transaction (after giving effect to any such reduction or indemnification payment) is equal to the amount such Stockholder would have received had the Incentive Payment Amount and ▇▇▇▇▇▇’▇ Raymond’s Incentive Shares been calculated based on an Equity Value equal to the original Equity Value less the amount of such reduction or indemnification payment (the “Trued-up Amount”), provided, however, that in no event shall ▇▇▇▇▇▇▇ be required to pay an aggregate amount that would result in ▇▇▇▇▇▇▇ receiving less than his Trued-up Amount.
(b) At any time after the earlier to occur of (i) January 1, 2015, and (ii) the date on which ▇▇▇▇▇ and his Affiliates shall have Sold to third parties (other than any employee of Vulcan Inc. or any Subsidiary thereof), in one or more transactions, shares of Common Stock representing more than 50% of the outstanding shares of Common Stock if, after giving effect to the last of such sales, the ▇▇▇▇▇ Ownership Percentage is less than 10% of the initial ▇▇▇▇▇ Ownership Percentage, the Management Stockholders shall be entitled to jointly request a determination of the Equity Value of the Company in accordance withto
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