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EXHIBIT
10.7
FORM OF MANAGEMENT
STOCKHOLDER’S AGREEMENT
This Management
Stockholder’s Agreement (this “ Agreement
”) is entered into as of
among New Omaha Holdings Corporation, a Delaware corporation (the
“ Company ”), New Omaha Holdings L.P., a
Delaware limited partnership (“ Parent ”), and
the undersigned person (the “ Management Stockholder
”) (the Company, Parent and the Management Stockholder being
hereinafter collectively referred to as the “ Parties
”). All capitalized terms not immediately defined are
hereinafter defined in Section 7(b) of this
Agreement.
WHEREAS, pursuant to the
Agreement and Plan of Merger, dated as of April 1, 2007 by and
among Parent, Omaha Acquisition Corporation, a Delaware corporation
and a direct wholly owned subsidiary of Parent (“ Merger
Sub ”), and First Data Corporation, as the same may be
amended (the “ Merger Agreement ”), and subject
to the terms and conditions set forth in the Merger Agreement,
Merger Sub merged on September 24, 2007 with and into First
Data Corporation (the “ Merger ”), with First
Data Corporation surviving as a wholly owned subsidiary of the
Company;
WHEREAS, in connection with
the Merger, KKR 2006 Fund L.P. and its affiliated investment funds
and certain other co-investors (collectively, the “
Investors ”) contributed certain funds to Parent in
exchange for limited partnership units of Parent;
WHEREAS, in connection with
the Merger, the Management Stockholder has been selected
(i) to exchange certain shares of common stock of First Data
Corporation owned immediately prior to the Effective Time for
shares of Common Stock (“ Rollover Stock ”)
pursuant to the Exchange Agreement, dated as of the date hereof,
entered into by and between the Company and the Management
Stockholder (the “ Exchange Agreement ”),
(ii) to transfer to the Company cash in exchange for shares of
Common Stock (“ Purchased Stock ”) and/or
(iii) to receive options to purchase shares of Common Stock
(together with any other options the Management Stockholder may
otherwise be granted in the future, the “ Options
”) pursuant to the terms set forth below and the terms of the
2007 Stock Incentive Plan for Key Employees of First Data
Corporation and its Affiliates (the “ Option Plan
”) and the Stock Option Agreement dated as of the date
hereof, entered into by and between the Company and the Management
Stockholder (together with any other option agreements entered into
by the Management Stockholder and the Company in the future, the
“ Stock Option Agreements ”); and
WHEREAS, this Agreement is
one of several other agreements (“ Other Management
Stockholders Agreements ”) which concurrently with the
execution hereof or in the future will be entered into between the
Company and other individuals who are or will be key employees of
the Company or one of its subsidiaries (collectively, the “
Other Management Stockholders ”).
NOW THEREFORE, to implement
the foregoing and in consideration of the mutual agreements
contained herein, the Parties agree as follows:
1. Issuance of Purchased
Shares; New Options .
(a) Subject to the terms and
conditions hereinafter set forth, the Management Stockholder hereby
subscribes for and shall purchase, as of the date hereof, and the
Company shall issue and deliver to the Management Stockholder as of
the date hereof, the number of shares of Purchased Stock at a per
share purchase price (the “ Base Price ”), in
each case as set forth on Schedule I hereto, which Base
Price is equal to the effective per share purchase price paid
(after taking into account certain equity placement fees paid
directly by Parent) by the Investors for the shares of the Company
in connection with the Merger.
(b) Subject to the terms and
conditions hereinafter set forth and in the Exchange Agreement,
immediately prior to the Effective Time, the Management Stockholder
shall, if applicable, transfer to the Company the shares identified
by such Management Stockholder in the Exchange Agreement and
immediately after the Effective Time the Management Stockholder
will receive the number of shares of Common Stock as set forth in
the Exchange Agreement.
(c) Subject to the terms and
conditions hereinafter set forth and as set forth in the Option
Plan, as of the date hereof the Company is granting to the
Management Stockholder Options to acquire such number of shares of
Common Stock, and at such exercise prices, as set forth in such
Management Stockholder’s Stock Option Agreement which the
Parties shall execute and deliver to each other copies of
concurrently with the issuance of such Options.
(d) The Company shall have no
obligation to sell any Purchased Stock to any person who
(i) is a resident or citizen of a state or other jurisdiction
in which the sale of the Common Stock to him or her would
constitute a violation of the securities or “blue sky”
laws of such jurisdiction or (ii) is not an employee or
director of the Company or its subsidiaries as of the date
hereof.
2. Management
Stockholder’s Representations, Warranties and Agreements
.
(a) The Management
Stockholder agrees and acknowledges that he will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or
otherwise dispose of (any of the foregoing acts being referred to
herein as a “ transfer ”) any shares of
Purchased Stock, Rollover Stock or, at the time of exercise, Common
Stock issuable upon exercise of Options (“ Option
Stock ”; together with all Purchased Stock, Rollover
Stock and any other Common Stock otherwise acquired and/or held by
the Management Stockholder Entities as of or after the date hereof,
whether pursuant to the exercise of Options or otherwise, the
“ Stock ”), except as provided in this
Section 2(a) below and Section 3 hereof. If the
Management Stockholder is an Affiliate of the Company, the
Management Stockholder also agrees and acknowledges that he or she
will not transfer any shares of the Stock unless:
(i) the transfer is pursuant
to an effective registration statement under the Securities Act of
1933, as amended, and the rules and regulations in effect
thereunder (the “ Act ”), and in compliance with
applicable provisions of state securities laws; or
(ii) (A) counsel for the
Management Stockholder (which counsel shall be reasonably
acceptable to the Company) shall have furnished the Company with an
opinion or other advice, reasonably satisfactory in form and
substance to the
Company, that no such
registration is required because of the availability of an
exemption from registration under the Act; provided that
such opinion of counsel or other advice shall not be required if
such transfer is pursuant to a Proposed Sale, as defined in the
Sale Participation Agreement and (B) if the Management
Stockholder is a citizen or resident of any country other than the
United States, or the Management Stockholder desires to effect any
transfer in any such country, counsel for the Management
Stockholder (which counsel shall be reasonably satisfactory to the
Company) shall have furnished the Company with an opinion or other
advice reasonably satisfactory in form and substance to the Company
to the effect that such transfer will comply with the securities
laws of such jurisdiction; provided that such opinion of
counsel or other advice shall not be required if such transfer is
pursuant to a Proposed Sale.
Notwithstanding the foregoing, the
Company acknowledges and agrees that any of the following transfers
of Stock are deemed to be in compliance with the Act and this
Agreement (including without limitation any restrictions or
prohibitions herein), and no opinion or advice of counsel or other
advisor is required in connection therewith: (1) a transfer
made pursuant to Section 3, 4, 5, 6 or 9 hereof, (2) a
transfer (x) upon the death or Disability of the Management
Stockholder to the Management Stockholder’s Estate or
(y) to the executors, administrators, testamentary trustees,
legatees, immediate family members or beneficiaries of a person who
has become a holder of Stock in accordance with the terms of this
Agreement; provided that it is expressly understood that any
such transferee shall be bound by the provisions of this Agreement,
(3) a transfer made after the Closing Date in compliance with
the federal securities laws to a Management Stockholder’s
Trust; provided that such transfer is made expressly subject
to this Agreement and that the transferee agrees in writing to be
bound by the terms and conditions hereof as a “Management
Stockholder” with respect to the representations and
warranties and other obligations of this Agreement; and
provided further that it is expressly understood and
agreed that if such Management Stockholder’s Trust at any
point includes any person or entity other than the Management
Stockholder, his spouse (or ex-spouse) or his lineal descendants
(including adopted children) such that it fails to meet the
definition thereof as set forth in Section 7(b) hereof, such
transfer shall no longer be deemed in compliance with this
Agreement and shall be subject to 3(b) below, (4) a transfer
of Stock made by the Management Stockholder to Other Management
Stockholders; provided that it is expressly understood that
any such transferee(s) shall be bound by the provisions of this
Agreement (in addition to the provisions set forth in an Other
Management Stockholders Agreement to which such Other Management
Stockholders are a party), and (5) a transfer made by the
Management Stockholder, with the Board’s approval, to the
Company or any subsidiary of the Company.
(b) The certificate (or
certificates) representing the Stock, if any, shall bear the
following legend:
“THE SHARES REPRESENTED
BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE MANAGEMENT
STOCKHOLDER’S AGREEMENT BETWEEN NEW OMAHA HOLDINGS
CORPORATION (THE “COMPANY”) AND THE MANAGEMENT
STOCKHOLDER NAMED ON THE FACE HEREOF OR THE SALE
PARTICIPATION AGREEMENT AMONG
SUCH MANAGEMENT STOCKHOLDER AND NEW OMAHA HOLDINGS, L.P., IN EACH
CASE DATED AS OF
(COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY) AND
ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AS AMENDED (THE “SECURITIES ACT”), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.”
(c) The Management
Stockholder acknowledges that he has been advised that (i) the
shares of Stock are characterized as “restricted
securities” under the Act inasmuch as they are being acquired
from the Company in a transaction not involving a Public Offering
and that under the Act (including applicable regulations) the Stock
may be resold without registration under the Act only in certain
limited circumstances, (ii) a restrictive legend in the form
heretofore set forth shall be placed on the certificates (if any)
representing the Stock and (iii) a notation shall be made in
the appropriate records of the Company indicating that the Stock is
subject to restrictions on transfer and appropriate stop transfer
restrictions will be issued to the Company’s transfer agent
with respect to the Stock.
(d) If any shares of the
Stock are to be disposed of in accordance with Rule 144 under
the Act or otherwise, the Management Stockholder shall promptly
notify the Company of such intended disposition and shall deliver
to the Company at or prior to the time of such disposition such
documentation as the Company may reasonably request in connection
with such sale and take any actions reasonably requested by the
Coordination Committee prior to any such sale (provided that such
instructions shall not have a disproportionate adverse impact on
any Management Stockholder vis-à-vis any other stockholders of
the Company or limited partners of Parent) and, in the case of a
disposition pursuant to Rule 144, shall deliver to the Company
an executed copy of any notice on Form 144 required to be
filed with the SEC.
(e) The Management
Stockholder agrees that, if any shares of the Stock are offered to
the public pursuant to an effective registration statement under
the Act (other than registration of securities issued on
Form S-8, S-4 or any successor or similar form), the
Management Stockholder will not effect any public sale or
distribution of any shares of the Stock not covered by such
registration statement from the time of the receipt of a notice
from the Company that the Company has filed or imminently intends
to file such registration statement to, or within 180 days (or
such shorter period as may be consented to by the managing
underwriter or underwriters) in the case of the initial Public
Offering and ninety (90) days (or in an underwritten offering
such shorter period as may be consented to by the managing
underwriter or underwriters, if any) in the case of any other
Public Offering after the effective date of such registration
statement, unless otherwise agreed to in writing by the Company,
provided , however , in no event shall the period
during which the Management Stockholders shall be restricted from
selling under this paragraph (e) be longer than the period
imposed upon the Sponsors.
(f) The Management
Stockholder represents and warrants that (i) with respect to
the Purchased Stock, Rollover Stock and Options, the Management
Stockholder has received and reviewed the available information
relating to such Stock and Options, including having received and
reviewed the documents related thereto, certain of which documents
set forth the rights, preferences and restrictions relating to the
Options and the Stock underlying the Options and (ii) the
Management Stockholder has been given the opportunity to obtain any
additional information or documents and to ask questions and
receive answers about such information, the Company and the
business and prospects of the Company which the Management
Stockholder deems necessary to evaluate the merits and risks
related to the Management Stockholder’s investment in the
Stock and to verify the information contained in the information
received as indicated in this Section 2(f), and the Management
Stockholder has relied solely on such information.
(g) The Management
Stockholder further represents and warrants that (i) the
Management Stockholder’s financial condition is such that the
Management Stockholder can afford to bear the economic risk of
holding the Stock for an indefinite period of time and has adequate
means for providing for the Management Stockholder’s current
needs and personal contingencies, (ii) the Management
Stockholder can afford to suffer a complete loss of his or her
investment in the Stock, (iii) the Management Stockholder
understands and has taken cognizance of all risk factors related to
the purchase of the Stock, (iv) the Management
Stockholder’s knowledge and experience in financial and
business matters are such that the Management Stockholder is
capable of evaluating the merits and risks of the Management
Stockholder’s purchase of the Stock as contemplated by this
Agreement, and (v) with respect to the Purchased Stock, such
Purchased Stock is being acquired by the Management Stockholder for
his or her own account, not as nominee or agent, and not with a
view to the resale or distribution of any part thereof in violation
of the Act, and the Management Stockholder has no present intention
of selling or otherwise distributing the Purchased Stock in
violation of the Act.
3. Transferability of
Stock .
(a) The Management
Stockholder agrees that he or she will not transfer any shares of
Stock at any time during the period commencing on the date hereof
and ending on the fifth anniversary of the Closing Date;
provided , however , the Management Stockholder may
transfer shares of Stock during such time pursuant to one of the
following exceptions: (i) transfers permitted by
Section 5 or 6; (ii) transfers permitted by
clauses (2), (3), (4) and (5) of Section 2(a);
(iii) a sale of shares of Common Stock pursuant to an
effective registration statement under the Act filed by the Company
upon the proper exercise of registration rights of such Management
Stockholder under Section 9 (excluding any registration on
Form S-8, S-4 or any successor or similar form);
(iv) transfers permitted pursuant to the Sale Participation
Agreement (as defined in Section 7(b)); (v) transfers
permitted by the Board or (vi) transfers to Parent or its
designee (any such exception, a “ Permitted Transfer
”); provided , further, that following the
consummation of a Qualified Public Offering, if the Selling
Entities (as defined in the Sale Participation Agreement) transfer,
directly or indirectly, for cash or any other consideration any
shares of Common Stock owned by any such Selling Entity (other than
pursuant to the Registration Rights Agreement), the Management
Stockholder shall be entitled to transfer (without giving effect to
any restrictions included herein) a number of shares of Common
Stock that the
Management Stockholder would have been
able to transfer in such sale pursuant to Section 2 of the
Sale Participation Agreement had it occurred prior to a Qualified
Public Offering but treating all unexercisable Options, to the
extent such Options would have become exercisable as a result of
the consummation of the sale, as exercisable. In addition, during
the period commencing on the fifth anniversary of the Closing Date
through the earlier of a Change of Control or consummation of a
Qualified Public Offering, the Management Stockholder may only
transfer shares of Stock in compliance with Section 4 or
pursuant to the Sale Participation Agreement.
(b) No transfer of any such
shares in violation hereof shall be made or recorded on the books
of the Company and any such transfer shall be void ab initio and of
no effect.
(c) Notwithstanding anything
to the contrary herein, Parent may, at any time and from time to
time, waive the restrictions on transfers contained in
Section 3(a), whether such waiver is made prior to or after
the transferee has effected or committed to effect the transfer, or
has notified the Investors of such transfer or commitment to
transfer. Any transfers made pursuant to such waiver or which are
later made subject to such a waiver shall, as of the date of the
waiver and at all times thereafter, not be deemed to violate any
applicable restrictions on transfers contained in this
Agreement.
4. Right of First
Refusal .
(a) If, at any time after the
fifth anniversary of the Closing Date and prior to the earlier to
occur of a Change of Control or consummation of a Qualified Public
Offering, the Management Stockholder proposes to transfer any or
all of the Management Stockholder’s Stock to a third party
(any such third party, the “ ROFR Transferee ”)
(other than any transfer pursuant to clauses (1), (2), (3),
(4) or (5) of Section 2(a), to the extent made to a
third party), the Management Stockholder shall notify the Company
in writing of the Management Stockholder’s intention to
transfer such Stock (such written notice, a “ ROFR
Notice ”). The ROFR Notice shall include a true and
correct description of the number of shares of Stock to be
transferred and the material terms of such proposed transfer and a
copy of any proposed documentation to be entered into with any ROFR
Transferee in respect of such transfer) and shall contain an
irrevocable offer to sell such Stock to the Company or its
designees (as provided below) (in the manner set forth below) at a
purchase price equal to the minimum price at which the Management
Stockholder proposes to transfer such Stock to any ROFR Transferee
and on substantially the same terms and conditions as the proposed
transfer. At any time within twenty (20) days after the date
of the receipt by the Company of the ROFR Notice, the Company shall
have the right and option to purchase, or to arrange for a
subsidiary, third party or Affiliate to purchase, all (but not less
than all) of the shares of Stock proposed to be transferred to a
ROFR Transferee, pursuant to Section 4(b).
(b) The Company shall have
the right and option to purchase, or to arrange for a subsidiary,
third party or Affiliate to purchase, all of the shares of Stock
proposed to be transferred to any ROFR Transferee at a purchase
price equal to the minimum price at which the Management
Stockholder proposes to transfer such Stock to any ROFR Transferee
and otherwise on substantially the same terms and conditions as the
proposed transfer (or, if the proposed transfer to any ROFR
Transferee includes any consideration other than cash, then at the
sole option of the Company, at the equivalent all cash price,
determined in good faith by the Board), by delivering (i) a
certified bank check or checks in the appropriate amount (or
by
wire transfer of immediately available
funds, if the Management Stockholder Entities provide to the
Company wire transfer instructions) and/or (ii) if the
proposed transfer to any ROFR Transferee includes any consideration
other than cash, any such non-cash consideration to be paid to the
Management Stockholder at the principal office of the Company
against delivery of certificates or other instruments representing
the shares of Stock so purchased, appropriately endorsed by the
Management Stockholder. If at the end of the 20-day period, the
Company has not tendered (or caused to be tendered) the purchase
price for such shares in the manner set forth above, the Management
Stockholder may, during the succeeding 60-day period, sell not less
than all of the shares of Stock proposed to be transferred to any
ROFR Transferee (subject to compliance with the other terms of this
Agreement) on terms no less favorable to the Management Stockholder
than those contained in the ROFR Notice. Promptly after such sale,
the Management Stockholder shall notify the Company of the
consummation thereof and shall furnish such evidence of the
completion and time of completion of such sale and of the terms
thereof as may reasonably be requested by the Company. If, at the
end of sixty (60) days following the expiration of the 20-day
period during which the Company is entitled hereunder to purchase
the Stock, the Management Stockholder has not completed the sale of
such shares of the Stock as aforesaid, all of the restrictions on
sale, transfer or assignment contained in this Agreement shall
again be in effect with respect to such shares of the
Stock.
(c) Notwithstanding anything
in this Agreement to the contrary, this Section 4 shall
terminate and be of no further force or effect upon the earlier of
occurrence of a Change in Control or a Qualified Public
Offering.
5. The Management
Stockholder’s Right to Resell Stock and Options to the
Company .
(a) Except as otherwise
provided herein, and subject to Section 6(b), if the
Management Stockholder’s employment with the Company (or, if
applicable, any of its subsidiaries or affiliates) terminates as a
result of the death or Disability of the Management Stockholder,
then the applicable Management Stockholder Entity, shall, until the
later of (x) 365 days following the date of such termination
for death or Disability or (y) if the Company has declared an
Event has occurred, 30 days following the date on which the
Management Stockholder receives notice that an Event no longer
exists (the “ Put Period ”), have the right
to:
(i) With respect to Stock,
sell to the Company, and the Company shall be required to purchase,
on one occasion, all of the shares of Stock then held by the
applicable Management Stockholder Entities at a per share price
equal to Fair Market Value on the Repurchase Calculation Date (the
“ Section 5 Repurchase Price ”); and
(ii) With respect to any
outstanding vested Options, sell to the Company, and the Company
shall be required to purchase, on one occasion, all of the then
vested Options then held by the applicable Management Stockholder
Entities for an amount equal to the product of (x) the excess,
if any, of the Section 5 Repurchase Price over the Option
Exercise Price and (y) the number of Exercisable Option
Shares, which Options shall be terminated in exchange for such
payment. In the event the Management Stockholder Entity elects to
sell under this Section 5(a)(ii) and the foregoing Option
Excess Price is zero or a negative number, all outstanding
exercisable Options granted to the Management Stockholder shall be
automatically terminated without any payment in respect thereof. In
addition, and for the avoidance of doubt, upon termination of
employment as a result of the death or Disability all unvested
Options shall be terminated and cancelled without any payment
therefor.
(b) In the event the
applicable Management Stockholder Entities intend to exercise their
rights pursuant to Section 5(a), such Management Stockholder
Entities shall send written notice to the Company, at any time
during the Put Period, of their intention to sell shares of Stock
in exchange for the payment referred to in Section 5(a)(i)
and/or to sell such Options in exchange for the payment referred to
in Section 5(a)(ii) (as the case may be) and shall indicate
the number of shares of Stock to be sold and the number of Options
(based on the number of Exercisable Option Shares) to be sold with
payment in respect thereof (the “ Redemption Notice
”). The completion of the purchases shall take place at the
principal office of the Company on no later than the twentieth
business day (such date to be determined by the Company) after the
giving of the Redemption Notice. The applicable Repurchase Price
(including any payment with respect to the Options as described
above) shall be paid by delivery to the applicable Management
Stockholder Entities, at the option of the Company, of a certified
bank check or checks in the appropriate amount payable to the order
of each of the applicable Management Stockholder Entities (or by
wire transfer of immediately available funds, if the Management
Stockholder Entities provide to the Company wire transfer
instructions) against delivery of certificates or other instruments
representing the Stock so purchased and appropriate documents
cancelling the Options so terminated appropriately endorsed or
executed by the applicable Management Stockholder Entities or any
duly authorized representative.
(c) Notwithstanding anything
in this Section 5 to the contrary, if (i) there exists
and is continuing a default or an event of default on the part of
the Company or any subsidiary of the Company under any loan,
guarantee or other agreement under which the Company or any
subsidiary of the Company has borrowed money or if the repurchase
referred to in Section 5(a) (or Section 6 below, as the
case may be) would result in a default or an event of default on
the part of the Company or any affiliate of the Company under any
such agreement; (ii) a repurchase would reasonably be expected
to be prohibited by the Delaware General Corporation Law (“
DGCL ”) or any federal or state securities laws or
regulations (or if the Company reincorporates in another state, the
business corporation law of such state) or (iii) a repurchase
would materially impair the cash flow of the Company, (each such
occurrence being an “ Event ”), the Company
shall not be obligated to repurchase for cash any of the Stock or
the Options from the applicable Management Stockholder Entities to
the extent it would cause any such default, materially impair cash
flow or would be so prohibited by the Event for cash but instead,
with respect to such portion with respect to which cash settlement
is prohibited, may satisfy its obligations with respect to the
Management Stockholder Entities’ exercise of their rights
under Section 5(a) by delivering to the applicable Management
Stockholder Entity a note with a principal amount equal to the
amount payable under this Section 5 that was not paid in cash,
having terms acceptable to the Company’s (and its
affiliate’s, as applicable) lenders and permitted under the
Company’s (and its affiliate’s, as applicable) debt
instruments but which in any event (i) shall be mandatorily
repayable promptly and to the extent that an Event no longer
prohibits the payment of cash to the applicable Management
Stockholder Entity pursuant to this Agreement; and (ii) shall
bear interest at a rate equal to the effective rate of interest in
respect of the Company’s U.S. dollar-denominated subordinated
public debt securities (including any original issue discount).
Notwithstanding the foregoing and subject to Section 5(d), if
an Event exists and is continuing for ninety (90) days after
the date of the Redemption Notice, the Management Stockholder
Entities shall be permitted by written notice to rescind
any
Redemption Notice with respect to that
portion of the Stock and Options repurchased by the Company from
the Management Stockholder Entities pursuant to this Section 5
with the note described in the foregoing sentence, and such
repurchase shall be rescinded; provided that, upon such
rescission, such note shall be immediately canceled without any
action on the part of the Company or the Management Stockholder
Entities, and notwithstanding anything herein or in such note to
the contrary, the Company shall have no obligation to pay any
amounts of principal or interest thereunder.
(d) Notwithstanding anything
in this Agreement to the contrary, except for any payment
obligation of the Company which has arisen prior to the occurrence
of a Change in Control, Section 5 shall terminate and be of no
further force or effect upon the occurrence of such Change in
Control.
6. The Company’s
Option to Purchase Stock and Options of the Management Stockholder
Upon Certain Terminations of Employment .
(a) Termination for Cause
by the Company and other Call Events . If, (i) prior to
the fifth anniversary of the Closing Date, the Management
Stockholder’s active employment with the Company (or, if
applicable, its subsidiaries or affiliates) is terminated by the
Company (or, if applicable, its subsidiaries or affiliates) for
Cause or (ii) the Management Stockholder Entities effect a
transfer of Stock (or Options) that is prohibited under this
Agreement (or the Stock Option Agreements, as applicable), after
notice from the Company of such impermissible transfer and a
reasonable opportunity to cure such transfer which is not so cured
(each event described above, a “ Section 6(a) Call
Event ”), then:
(i) With respect to Stock,
the Company may purchase, on one occasion, all or any portion of
the shares of Stock then held by the applicable Management
Stockholder Entities at a per share purchase price equal to the
lesser of (x) Base Price (or other applicable price paid by
such Management Stockholder Entities for such Stock) and
(y) the Fair Market Value on the Repurchase Calculation Date;
and
(ii) With respect to all
Options, all outstanding Options, whether vested or unvested, shall
be automatically terminated without any payment in respect thereof
upon the occurrence of the Section 6(a) Call Event.
(b) Termination without
Cause by the Company (other than due to his or her death or
Disability), Termination by the Management Stockholder with Good
Reason and Termination for Death or Disability . If, prior to
the fifth anniversary of the Closing Date, the Management
Stockholder’s active employment with the Company (or, if
applicable, its subsidiaries or affiliates) is terminated
(i) by the Company (or, if applicable, its subsidiaries or
affiliates) without Cause (other than due to his death or
Disability), (ii) by the Management Stockholder with Good
Reason or (iii) as a result of the death or Disability of the
Management Stockholder (each, a “ Section 6(b) Call
Event ”) then:
(i) With respect to Stock,
the Company may purchase, on one occasion, all or any portion of
the shares of such Stock then held by the applicable Management
Stockholder Entities at a per share purchase price equal to Fair
Market Value on the Repurchase Calculation Date;
(ii) With respect to any
outstanding vested Options, the Company may purchase, on one
occasion, all or any portion of the exercisable vested Options held
by the applicable Management Stockholder Entities for an amount
equal to the product of (x) the excess, if any, of the Fair
Market Value on the Repurchase Calculation Date over the Option
Exercise Price and (y) the number of Exercisable Option Shares
(sol
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