Put and Call. (a) Following the termination of Shareholder’s employment with the Company (i) on or after December 31, 2009 (for any reason), (ii) upon (A) Shareholder’s death or disability pursuant to Section 5 of the Employment Agreement or (B) the mutual agreement of Shareholder and the Company, (iii) by Shareholder pursuant to clause (a) or (b) of Section 7 of the Employment Agreement, (iv) by the Company in breach of the Employment Agreement, or (v) for any reason upon or following a Change in Control, Shareholder or his estate or legal representatives (as the case may be) shall have the right to require the Company to purchase all (but not less than all) Eligible Shares, which right shall be exercisable by Shareholder or any Permitted Lodovic Holder upon written notice to the Company during the one hundred eighty (180) days following such termination. Any purchase pursuant to the prior sentence shall be made at 100% of Fair Market Value of the Eligible Shares so purchased, provided that in the case of an exercise of the right described in clause (i) of this Section 1(a) in connection with termination of employment between December 31, 2009 and June 30, 2010, the Fair Market Value of 5% of Eligible Shares so purchased shall be determined as of the earlier of (x) July 1, 2010 and (y) the date Shareholder or his estate or legal representatives (as the case may be) has knowledge of the occurrence of a Change in Control (the “Delayed Fair Market Value”). If the proviso to the preceding sentence is applicable, and the date of determination of the Delayed Fair Market Value is after the date of closing of the purchase, then (i) the purchase price for 100% of Eligible Shares shall be paid at the closing of the purchase as if the Fair Market Value on the date of termination of Employment (the “Initial Fair Market Value”) were the Delayed Fair Market Value, (ii) at the closing 5% of the purchase price shall be deposited in escrow with an escrow agent reasonably acceptable to the Shareholder and the Company, (iii) promptly following determination of the Delayed Fair Market Value, the escrow agent shall pay the amount held in escrow (up to the amount of the Delayed Fair Market Value of 5% of Eligible Shares, plus interest as provided below) to Shareholder and, if the amount held in escrow is greater than the payment to the Shareholder, the escrow agent shall pay the balance to the Company, and (iv) if the amount held in escrow is less than the amount of the Delayed Fair Market Value of 5% of Eligible Shares, plus interest as provided below, the Company shall pay to the Shareholder the amount of the shortfall. The payment to the Shareholders of the portion of the purchase price paid to the Shareholder following determination of the Delayed Fair Market Value shall be accompanied by interest thereon at an annual rate of LIBOR plus 6%. The right of Shareholder or any Permitted Lodovic Holder to require the Company to purchase such Eligible Shares pursuant to this paragraph (a) shall terminate upon the occurrence of an Eligible IPO unless previously exercised. (b) Following any termination of Shareholder’s employment with the Company other than terminations described in the preceding paragraph (a) of this Section 1, (i) the Company shall have the right to purchase all (but not less than all) Eligible Shares, which right shall be exercisable by the Company upon written notice to Shareholder or his estate or legal representatives (as the case may be) during the one hundred eighty (180) days following such termination, and (ii) Shareholder and Permitted Lodovic Holders shall have the right to require the Company to purchase all (but not less than all) Eligible Shares, which right shall be exercisable by written notice during the one hundred eighty (180) day period commencing on the earlier of (x) July 1, 2010 and (y) the date Shareholder or his estate or legal representatives (as the case may be) has knowledge of the occurrence of a Change in Control (occurring after the date of termination of Shareholder’s employment with the Company). Any purchase pursuant to the prior sentence shall be made at the following stated percentages of Fair Market Value of the Eligible Shares so purchased: if Shareholder’s employment with the Company terminates on or after December 31, 2009, 100%; for termination on or after December 31, 2008 and before December 31, 2009, 95%; for termination on or after December 31, 2007 and before December 31, 2008, 90%; for termination on or after December 31, 2006 and before December 31, 2007, 85%; for termination on or after December 31, 2005 and before December 31, 2006, 80%; and for termination on or after December 31, 2004 and before December 31, 2005, 75%. Notwithstanding the foregoing, the percentage of Fair Market Value shall be deemed to be 100% upon and following the occurrence of a Change in Control. (c) With regard to any exercise of any right of the Company to purchase Eligible Shares pursuant to clause (i) of the first sentence of Section 1(b) (a “Call Right”), the Company may, upon written notice accompanying notice of such exercise, elect to pay the exercise price in installments, the first of which shall be payable at the closing of the purchase, with subsequent installments due on each successive anniversary of the closing (a “Payment Date”). The amount due on each Payment Date (including the date of the closing of the purchase) shall be (x) an amount determined by multiplying the total purchase price by the percentages specified in the chart below or (y) if less, the remaining unpaid balance of the purchase price. For this purpose, the Leverage Ratio shall be determined as of the end of the fiscal quarter of the Company ending at least 60 days prior to the exercise of the Call Right and each subsequent Payment Date, as applicable, and without regard to any debt constituting obligations under this Agreement, until all the Eligible Shares subject to the Call Right are paid for. Leverage Ratio Percentage 3:1 or less 100% Greater than 3:1 and equal to or less than 3.5:1 60% Greater than 3.5:1 and equal to or less than 4:1 50% Greater than 4.1 and equal to or less than 4.5:1 40% Greater than 4.5:1 and equal to or less than 5:1 30% Greater than 5:1 and equal to or less than 5.5:1 20% Greater than 5.5:1 and equal to or less than 6:1 10% Greater than 6:1 0% Notwithstanding the foregoing, (x) the percentages in the chart shall all be deemed to be 100% following the first to occur of (i) the occurrence of a Change in Control, (ii) the consummation of an Eligible IPO, or (iii) January 1, 2010 and (y) all remaining payments of purchase price pursuant to the exercise of a Call Right shall be payable on the first to occur of January 1, 2010, the date of the occurrence of a Change in Control or the date of consummation of an Eligible IPO occurring after the exercise of such Purchase Right. (i) The closing of any purchase of Eligible Shares pursuant to this Section 1 shall (subject to clause (ii) below) take place on the later of (x) the thirtieth day after notice of exercise of a right of Shareholder to require the Company to purchase Eligible Shares pursuant to paragraphs (a) or (b) of this Section 1 (a “Put Right”) or of a Call Right (Call Rights and Put Rights are referred to collectively as “Purchase Rights”) is given, (y) in the case of the exercise of a Put Right, the fifth business day after the condition described in clause (ii) of this paragraph (d) is first satisfied and (z) the fifth business day after expiration or termination of any applicable waiting period under the HSR Act. At any such closing, the Eligible Shares shall be delivered to the Company free and clear of all liens, claims and other encumbrances. (ii) If, (x) at the time of the exercise of a Put Right, the Leverage Ratio is greater than 5:1, then (without limitation of Section 2 below) the consummation of the purchase of Eligible Shares shall be deferred until such time as the Leverage Ratio is equal to or less than 5:1 (without regard to any debt constituting obligations under this Agreement), or (y) at the time of payment of the purchase price pursuant to a Put Right, the purchase by the Company of Eligible Shares pursuant to such Put Right would violate Section 160(a) of the General Corporation Law of the State of Delaware, then the purchase of such portion of such Eligible Shares as would result in such violation shall be deferred until such purchase would not so violate such provision, provided that (I) following receipt of notice of the exercise of a Put Right that is affected by this clause (d)(ii), the Company shall not repurchase any Common Stock (either directly or thorough any subsidiary or any other Person, but excluding repurchases of shares issued under the RSU Plan, Section 2 hereof or under Section 10 of the Employment Agreement dated the date hereof between the Company and W▇▇▇▇▇▇ D▇▇▇ ▇▇▇▇▇▇▇▇▇) or pay or declare any dividends or other distributions on its Common Stock until the purchase of Eligible Shares pursuant to such Put Right has been consummated and the entire purchase price therefore paid, (II) in no event shall the making of any payment be deferred as a result of sub-clause (x) of this clause (d)(ii) beyond the first to occur of (a) the third business day following the second anniversary of the exercise of the Put Right or (b) the date of the occurrence of a Change in Control or the consummation of an eligible IPO and (III) in the event that this clause (d)(ii) would result in the deferral of payment of all or any portion of the purchase price pursuant to a Put Right, Shareholder by notice to the Company may rescind the exercise of such Put Right (which Put Right may be exercised at a later date in accordance with this Agreement). (i) The Company and Shareholder agree that from and after the exercise of any Purchase Right, each shall use their respective commercially reasonable efforts to take or cause to be taken all actions and to do or cause to be done all things necessary, proper or advisable to consummate the closing thereof, and to cooperate in connection with the foregoing, including using their respective commercially reasonable efforts to obtain all approvals that are required to be obtained under any legal requirement, to effect all necessary registrations, filings and submissions of information requested by any governmental authority and, subject to paragraph (d)(ii) of this Section 1, obtain all consents required under agreements binding upon the Company or its subsidiaries. (ii) As soon as practicable after the exercise of any Purchase Right, the Company and Shareholder will, and will cause their respective affiliates to, prepare and file all documents with the Federal Trade Commission and the United States Department of Justice (if any) that are required to comply with the HSR Act in connection with the transactions contemplated hereby. The Company and Shareholder will (and will cause their respective affiliates to) in good faith promptly furnish all materials reasonably requested by any of the regulatory agencies having jurisdiction over such filings. The Company and Shareholder will (and will cause their respective affiliates to) request early termination of the waiting period under the HSR Act. All fees payable to the Federal Trade Commission or the Department of Justice (or otherwise to the U.S. government) in connection with such filing shall be paid by the Company. (f) Any payment of the purchase price pursuant to the exercise of a Purchase Right that is made on a date subsequent to the date it would otherwise be made pursuant to paragraph (d)(i) (whether as a result of paragraph (c) or paragraph (d)(ii) of this Section 1 or for any other reason) (the “Original Payment Date”) shall accrue interest from the Original Payment Date through (but excluding) the date made at an annual rate of LIBOR plus 6%, payable quarterly in arrears on the fifth business day following the end of each calendar quarter. (g) Nothing in this Section 1 shall be deemed to restrict Shareholder or any Permitted Lodovic Holder from selling or otherwise transferring Eligible Shares prior to the exercise of a Purchase Right. All Eligible Shares transferred to a Permitted Lodovic Holder shall remain subject to the terms and provisions of this Section 1, and Eligible Shares that are transferred to any other Person shall not be subject to the terms of this Section 1. Until Eligible Shares are transferred to a Person who is not a Permitted Lodovic Holder, the certificates representing such shares shall bear the following legend (or a legend of similar effect): “THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A SHAREHOLDER AGREEMENT. A COPY OF THAT AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO TIME, IS MAINTAINED WITH THE CORPORATE RECORDS OF THE COMPANY AND IS AVAILABLE FOR INSPECTION AT THE EXECUTIVE OFFICES OF THE COMPANY.”
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Put and Call. (a) Following the termination of Shareholder’s 's employment with the Company (i) on or after December 31, 2009 (for any reason), (ii) upon (A) Shareholder’s 's death or disability pursuant to Section 5 of the Employment Agreement or (B) the mutual agreement of Shareholder and the Company, (iii) by Shareholder pursuant to clause (a) or (b) of Section 7 of the Employment Agreement, (iv) by the Company in breach of the Employment Agreement, or (v) for any reason upon or following a Change in Control, Shareholder or his estate or legal representatives (as the case may be) shall have the right to require the Company to purchase all (but not less than all) Eligible Shares, which right shall be exercisable by Shareholder or any Permitted Lodovic Holder upon written notice to the Company during the one hundred eighty (180) days following such termination. Any purchase pursuant to the prior sentence shall be made at 100% of Fair Market Value of the Eligible Shares so purchased, provided that in the case of an exercise of the right described in clause (i) of this Section 1(a) in connection with termination of employment between December 31, 2009 and June 30, 2010, the Fair Market Value of 5% of Eligible Shares so purchased shall be determined as of the earlier of (x) July 1, 2010 and (y) the date Shareholder or his estate or legal representatives (as the case may be) has knowledge of the occurrence of a Change in Control (the “Delayed Fair Market Value”). If the proviso to the preceding sentence is applicable, and the date of determination of the Delayed Fair Market Value is after the date of closing of the purchase, then (i) the purchase price for 100% of Eligible Shares shall be paid at the closing of the purchase as if the Fair Market Value on the date of termination of Employment (the “Initial Fair Market Value”) were the Delayed Fair Market Value, (ii) at the closing 5% of the purchase price shall be deposited in escrow with an escrow agent reasonably acceptable to the Shareholder and the Company, (iii) promptly following determination of the Delayed Fair Market Value, the escrow agent shall pay the amount held in escrow (up to the amount of the Delayed Fair Market Value of 5% of Eligible Shares, plus interest as provided below) to Shareholder and, if the amount held in escrow is greater than the payment to the Shareholder, the escrow agent shall pay the balance to the Company, and (iv) if the amount held in escrow is less than the amount of the Delayed Fair Market Value of 5% of Eligible Shares, plus interest as provided below, the Company shall pay to the Shareholder the amount of the shortfall. The payment to the Shareholders of the portion of the purchase price paid to the Shareholder following determination of the Delayed Fair Market Value shall be accompanied by interest thereon at an annual rate of LIBOR plus 6%. The right of Shareholder or any Permitted Lodovic Holder to require the Company to purchase such Eligible Shares pursuant to this paragraph (a) shall terminate upon the occurrence of an Eligible IPO unless previously exercised.
(b) Following any termination of Shareholder’s 's employment with the Company other than terminations described in the preceding paragraph (a) of this Section 1, (i) the Company shall have the right to purchase all (but not less than all) Eligible Shares, which right shall be exercisable by the Company upon written notice to Shareholder or his estate or legal representatives (as the case may be) during the one hundred eighty (180) days following such termination, and (ii) Shareholder and Permitted Lodovic Holders shall have the right to require the Company to purchase all (but not less than all) Eligible Shares, which right shall be exercisable by written notice during the one hundred eighty (180) day period commencing on the earlier of (x) July 1June 30, 2010 and (y) the date Shareholder or his estate or legal representatives (as the case may be) has knowledge of the occurrence of a Change in Control (occurring after the date of termination of Shareholder’s 's employment with the Company). Any purchase pursuant to the prior sentence shall be made at the following stated percentages of Fair Market Value of the Eligible Shares so purchased: if Shareholder’s 's employment with the Company terminates on or after December 31, 2009, 100%; for termination on or after December 31, 2008 and before December 31, 2009, 95%; for termination on or after December 31, 2007 and before December 31, 2008, 90%; for termination on or after December 31, 2006 and before December 31, 2007, 85%; for termination on or after December 31, 2005 and before December 31, 2006, 80%; and for termination on or after December 31, 2004 and before December 31, 2005, 75%. Notwithstanding the foregoing, the percentage of Fair Market Value shall be deemed to be 100% upon and following the occurrence of a Change in Control.
(c) With regard to any exercise of any right of the Company to purchase Eligible Shares pursuant to clause (i) of the first sentence of Section 1(b) (a “"Call Right”"), the Company may, upon written notice accompanying notice of such exercise, elect to pay the exercise price in installments, the first of which shall be payable at the closing of the purchase, with subsequent installments due on each successive anniversary of the closing (a “"Payment Date”"). The amount due on each Payment Date (including the date of the closing of the purchase) shall be (x) an amount determined by multiplying the total purchase price by the percentages specified in the chart below or (y) if less, the remaining unpaid balance of the purchase price. For this purpose, the Leverage Ratio shall be determined as of the end of the fiscal quarter of the Company ending at least 60 days prior to the exercise of the Call Right and each subsequent Payment Date, as applicable, and without regard to any debt constituting obligations under this Agreement, until all the Eligible Shares subject to the Call Right are paid for. Leverage Ratio Percentage -------------- ---------- 3:1 or less 100% Greater than 3:1 and equal to or less than 3.5:1 60% Greater than 3.5:1 and equal to or less than 4:1 50% Greater than 4.1 and equal to or less than 4.5:1 40% Greater than 4.5:1 and equal to or less than 5:1 30% Greater than 5:1 and equal to or less than 5.5:1 20% Greater than that 5.5:1 and equal to or less than 6:1 10% Greater than 6:1 0% Notwithstanding the foregoing, (x) the percentages in the chart shall all be deemed to be 100% following the first to occur of (i) the occurrence of a Change in Control, (ii) the consummation of an Eligible IPO, or (iii) January 1, 2010 and (y) all remaining payments of purchase price pursuant to the exercise of a Call Right shall be payable on the first to occur of January 1, 2010, the date of the occurrence of a Change in Control or the date of consummation of an Eligible IPO occurring after the exercise of such Purchase Right.
(i) The closing of any purchase of Eligible Shares pursuant to this Section 1 shall (subject to clause (ii) below) take place on the later of (x) the thirtieth day after notice of exercise of a right of Shareholder to require the Company to purchase Eligible Shares pursuant to paragraphs (a) or (b) of this Section 1 (a “"Put Right”") or of a Call Right (Call Rights and Put Rights are referred to collectively as “"Purchase Rights”") is given, (y) in the case of the exercise of a Put Right, the fifth business day after the condition described in clause (ii) of this paragraph (d) is first satisfied and (z) the fifth business day after expiration or termination of any applicable waiting period under the HSR Act. At any such closing, the Eligible Shares shall be delivered to the Company free and clear of all liens, claims and other encumbrances.
(ii) If, (x) at the time of the exercise of a Put Right, the Leverage Ratio is greater than 5:1, then (without limitation of Section 2 below) the consummation of the purchase of Eligible Shares shall be deferred until such time as the Leverage Ratio is equal to or less than 5:1 (without regard to any debt constituting obligations under this Agreement), or (y) at the time of payment of the purchase price pursuant to a Put Right, the purchase by the Company of Eligible Shares pursuant to such Put Right would violate Section 160(a) of the General Corporation Law of the State of Delaware, then the purchase of such portion of such Eligible Shares as would result in such violation shall be deferred until such purchase would not so violate such provision, provided that (I) following receipt of notice of the exercise of a Put Right that is affected by this clause (d)(ii), the Company shall not repurchase any Common Stock (either directly or thorough any subsidiary or any other Person, but excluding repurchases of shares issued under the RSU Plan, Section 2 hereof or under Section 10 of the Employment Agreement dated the date hereof between the Company and W▇▇▇▇▇▇▇ D▇▇▇▇ ▇▇▇▇▇▇▇▇▇) or pay or declare any dividends or other distributions on its Common Stock until the purchase of Eligible Shares pursuant to such Put Right has been consummated and the entire purchase price therefore paid, (II) in no event shall the making of any payment be deferred as a result of sub-clause (x) of this clause (d)(ii) beyond the first to occur of (a) the third business day following the second anniversary of the exercise of the Put Right or (b) the date of the occurrence of a Change in Control or the consummation of an eligible IPO and (III) in the event that this clause (d)(ii) would result in the deferral of payment of all or any portion of the purchase price pursuant to a Put Right, Shareholder by notice to the Company may rescind the exercise of such Put Right (which Put Right may be exercised at a later date in accordance with this Agreement).
(i) The Company and Shareholder agree that from and after the exercise of any Purchase Right, each shall use their respective commercially reasonable efforts to take or cause to be taken all actions and to do or cause to be done all things necessary, proper or advisable to consummate the closing thereof, and to cooperate in connection with the foregoing, including using their respective commercially reasonable efforts to obtain all approvals that are required to be obtained under any legal requirement, to effect all necessary registrations, filings and submissions of information requested by any governmental authority and, subject to paragraph (d)(ii) of this Section 1, obtain all consents required under agreements binding upon the Company or its subsidiaries.
(ii) As soon as practicable after the exercise of any Purchase Right, the Company and Shareholder will, and will cause their respective affiliates to, prepare and file all documents with the Federal Trade Commission and the United States Department of Justice (if any) that are required to comply with the HSR Act in connection with the transactions contemplated hereby. The Company and Shareholder will (and will cause their respective affiliates to) in good faith promptly furnish all materials reasonably requested by any of the regulatory agencies having jurisdiction over such filings. The Company and Shareholder will (and will cause their respective affiliates to) request early termination of the waiting period under the HSR Act. All fees payable to the Federal Trade Commission or the Department of Justice (or otherwise to the U.S. government) in connection with such filing shall be paid by the Company.
(f) Any payment of the purchase price pursuant to the exercise of a Purchase Right that is made on a date subsequent to the date it would otherwise be made pursuant to paragraph (d)(i) (whether as a result of paragraph (c) or paragraph (d)(ii) of this Section 1 or for any other reason) (the “"Original Payment Date”") shall accrue interest from the Original Payment Date through (but excluding) the date made at an annual rate of LIBOR plus 6%, payable quarterly in arrears on the fifth business day following the end of each calendar quarter.
(g) Nothing in this Section 1 shall be deemed to restrict Shareholder or any Permitted Lodovic Holder from selling or otherwise transferring Eligible Shares prior to the exercise of a Purchase Right. All Eligible Shares transferred to a Permitted Lodovic Holder shall remain subject to the terms and provisions of this Section 1, and Eligible Shares that are transferred to any other Person shall not be subject to the terms of this Section 1. Until Eligible Shares are transferred to a Person who is not a Permitted Lodovic Holder, the certificates representing such shares shall bear the following legend (or a legend of similar effect): “"THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A SHAREHOLDER AGREEMENT. A COPY OF THAT AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO TIME, IS MAINTAINED WITH THE CORPORATE RECORDS OF THE COMPANY AND IS AVAILABLE FOR INSPECTION AT THE EXECUTIVE OFFICES OF THE COMPANY.”"
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