Exhibit 10.15
OPTION AGREEMENT
OPTION AGREEMENT (this “
Agreement ”), entered into as of this May 6, 2009
(the “ Grant Date ”), between Intelsat Global,
Ltd. (formerly known as Serafina Holdings Limited and referred to
herein as the “ Company ”), and David McGlade,
an employee of the Company or one of its Subsidiaries, (the “
Employee ”);
WHEREAS, Employee has agreed to
perform services for the Company or one or more of its Subsidiaries
(the “ Employer ”);
WHEREAS, the Company wishes to carry
out the Intelsat Global, Ltd. 2008 Share Incentive Plan (as it may
be amended from time to time, the “ Plan ”), the
terms of which are hereby incorporated by reference and made a part
of this Agreement;
WHEREAS, the Committee appointed to
administer the Plan pursuant to Section 3 of the Plan has
determined that it would be to the advantage and in the best
interest of the Company and its shareholders to grant the
Non-Qualified Stock Option provided for herein (the “
Option ”) to the Employee as an inducement to enter
into or remain in the service of the Company (or one of its
Subsidiaries) (the “ Employer ”) and as an
incentive for increased efforts during such service, and has
advised the Company thereof and instructed the undersigned officers
to grant said Option; and
WHEREAS, this Agreement memorializes
certain terms and conditions applicable to the Option;
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter set forth and for other good and
valuable consideration, the parties hereto do hereby agree as
follows:
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1.
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Capitalized
Terms . Capitalized terms
not defined herein shall have the meaning ascribed to such terms in
the Plan.
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(a)
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Genera l. As of the Grant Date, the Company hereby
grants to the Employee the Option to purchase any part or all of an
aggregate of 251,013 Class A Shares. The Employee acknowledges
that the Option will be subject to the terms and conditions set
forth in this Agreement and the Plan, including, without
limitation, Section 6 of the Plan and that as of the Grant
Date the Employee is a party to the Management Shareholders
Agreement.
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(b)
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Exercise
Price . The purchase
price of the Class A Shares covered by the Option shall be
U.S. $100.00 per Class A Share (the “ Exercise
Price ”) (without commission or other charge).
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(c)
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Term .
Unless earlier terminated pursuant to the terms of this Agreement,
the Option shall expire on February 4, 2018, and the Employee
shall thereafter cease to have any rights in respect
thereof.
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3.
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Fair Market
Value; 83(b) Election .
With respect to the exercise of the Option for Class A Shares,
the Employee, in his sole discretion, may make an election with the
Internal Revenue Service (the “ IRS ”) under
Section 83(b) of the Internal Revenue Code of 1986, as amended
(the “ Code ”) and the regulations promulgated
thereunder in the form of Exhibit B attached hereto (the “
83(b) Election ”). The Employee understands that under
applicable law such election must be filed with the IRS no later
than thirty (30) days after the date of purchase of
Class A Shares to be effective. If the Employee files an
effective 83(b) Election, the excess of the fair market value of
the Class A Shares (which the IRS may assert is different from
the Fair Market Value determined by the parties) covered by such
election over the amount paid by the Employee for the shares shall
be treated as ordinary income received by the Employee, and the
Company or one of its Subsidiaries shall withhold from
Employee’s compensation any amounts required to be withheld
under applicable law. If the Employee does not file an 83(b)
Election, future appreciation on the Class A Shares will
generally be taxable as ordinary income at the time or times when
the Company’s repurchase rights with respect to such
Class A Shares (as set forth in this Agreement) lapse. The
foregoing is merely a brief summary of complex tax laws and
regulations, and therefore the Employee is advised to consult with
his own tax advisors regarding his purchase and holding of
Class A Shares.
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4.
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Equity
Plan . The Option and
this Agreement shall be subject to the terms of the Plan, to the
extent the terms of such Plan are not inconsistent with the terms
of this Agreement. In the event of any inconsistency between the
terms of the Plan and the terms of this Agreement, this Agreement
shall govern.
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5.
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Vesting . The Option shall initially be unvested with
respect to all Class A Shares covered thereby.
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(a)
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Performance
Option . Subject to
Section 7, the Option to purchase up to 136,916 of the
Class A Shares subject to the Option (the “
Performance Option ”) shall be eligible to become
vested and exercisable as set forth on Exhibit A , subject
to the Employee’s continued employment on the applicable
vesting date.
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(b)
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Performance
Exit Option . Subject to
Section 7 below, the Option to purchase up to 114,097 of the
Class A Shares subject to the Option (the “
Performance Exit Option ”) shall be eligible to become
vested and exercisable as set forth on Exhibit A , subject
to the Employee’s continued employment on the applicable
vesting date.
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(a)
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The portion of
the Option as to which the Employee is vested shall be exercisable
by delivery to the Company of a written notice stating the number
of Class A Shares to be purchased pursuant to this Agreement
and accompanied by payment in full of the exercise price of the
Class A Shares to be purchased. Anything to the contrary
herein notwithstanding, the Company shall not be obligated to issue
any Class A Shares hereunder if the issuance of such
Class A Shares would violate the provision of any law, in
which event the Company shall, as soon as practicable, take
whatever action it reasonably can so that such Class A Shares
may be issued without resulting in such violations of
law.
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(b)
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The exercise
price of an Option shall be paid: (i) in cash or by certified
check or bank draft payable to the order of the Company;
(ii) by reducing the number of Class A Shares otherwise
deliverable pursuant to the Option by the number of such
Class A Shares having a Fair Market Value on the date of
exercise equal to the exercise price of the Class A Shares to
be purchased; (iii) by exchange of unrestricted Class A
Shares of the Company already owned by the Employee and having an
aggregate Fair Market Value equal to the aggregate exercise price,
provided that the Employee represents and warrants to the
Company that the Employee has held such Class A Shares free
and clear of liens and encumbrances and has held such Class A
Shares; (iv) if permitted by the Committee, by delivering,
along with a properly executed exercise notice to the Company, a
copy of irrevocable instructions to a broker to deliver promptly to
the Company the aggregate exercise price and, if requested by the
Employee, the amount of any applicable federal, state, local or
foreign withholding taxes required to be withheld by the Company,
provided , however , that such exercise may be
implemented solely under a program or arrangement established and
approved by the Company with a brokerage firm selected by the
Company; or (v) by any other procedure approved by the
Committee, or by a combination of the foregoing.
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7.
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Termination
of Employment .
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(a)
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Termination
without Cause or for Good Reason . In the event of the Employee’s
Termination of Employment by the Employer without Cause or by the
Employee for Good Reason (as defined in the employment agreement by
and among the Company, Intelsat, Ltd. and the Employee dated
December 29, 2008 and effective as of February 4, 2008
(the “ Employment Agreement ”)):
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(A)
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Performance Option
. Except as provided in the
immediately following sentence, no portion of the Performance
Option that is not vested as of the date of a Termination of
Employment, shall become vested following the date of Termination
of Employment, and any portion of the Performance Option that is
vested as of the date of such Termination of Employment shall be
exercised prior to the earlier of (x) the first anniversary of
such Termination of Employment and (y) the scheduled
expiration date of the Option. Notwithstanding the foregoing, if
during the period commencing with such Termination of Employment
and ending on the six month anniversary of such Termination of
Employment (the “ Involuntary Termination Protected
Period ”) either (x) an Initial Public Offering
occurs, or (y) the Company enters into a definitive agreement
with respect to a Change in Control transaction, then immediately
prior to the effective date of the Initial Public
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Offering or Change in Control, as
applicable (and subject to the consummation of such Initial Public
Offering or Change in Control), a portion of the Performance Option
as determined pursuant to Exhibit A will vest as if the
Change in Control or Initial Public Offering, as applicable, had
occurred immediately prior to such Termination of Employment and
any portion of the Performance Option that remains unvested at such
time shall be forfeited. Except as provided in the immediately
preceding sentence, to the extent the Performance Option remains
outstanding as of the last day of the Involuntary Termination
Protected Period, it shall be forfeited immediately following the
last day of the Involuntary Termination Protected Period. Any
portion of the Performance Option that becomes vested pursuant to
this Section 7(a)(i)(A) in connection with an Initial Public
Offering or Change in Control may, subject to Section 8 hereof
and Section 12 of the Plan, be exercised prior to the earlier
of (x) the first anniversary of such Initial Public Offering
or Change in Control and (y) the scheduled expiration date of
the Option.
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(B)
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Performance
Exit Option . Except as
provided in the immediately following sentence, no portion of the
Performance Exit Option that is not vested as of the date of such a
Termination of Employment shall become vested following the date of
Termination of Employment, and any portion of the Performance Exit
Option that is vested as of the date of such Termination of
Employment shall be exercised prior to the earlier of (x) the
first anniversary of such Termination of Employment and
(y) the scheduled expiration date of the Option.
Notwithstanding the foregoing, if during the Involuntary
Termination Protected Period either (I) an Initial Public
Offering occurs, or (II) the Company enters into a definitive
agreement with respect to a Change in Control transaction, then
immediately prior to the effective date of the Initial Public
Offering or Change in Control, as applicable (and subject to the
consummation of such Initial Public Offering or Change in Control),
a portion of the Performance Exit Option as determined pursuant to
Exhibit A will vest as if the Change in Control or Initial
Public Offering, as applicable, had occurred immediately prior to
such Termination of Employment and any portion of the Performance
Exit Option that remains unvested at such time shall be forfeited.
Except as provided in the immediately preceding sentence, to the
extent the Performance Exit Option remains outstanding as of the
last day of the Involuntary Termination Protected Period, it shall
be forfeited immediately following the last day of the Involuntary
Termination Protected Period. Any portion of the Performance Exit
Option that becomes vested pursuant to this Section 7(a)(i)(B)
in connection with an Initial Public Offering or Change in Control
may, subject to Section 8 hereof and Section 12 of the
Plan, be exercised prior to the earlier of (x) the first
anniversary of such Initial Public Offering or Change in Control
and (y) the scheduled expiration date of the
Option.
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(A)
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To the extent
vested, outstanding and unexercised as of the date of a Termination
of Employment, the Option may be cancelled by the Company at any
time following the date of such Termination of Employment prior to
its exercise in exchange for a payment to the Employee in an amount
equal to the excess, if any, of (x) the Fair Market Value of a
Class A Share as of the date of repurchase over (y) the
exercise price of such Option (the “ Option Repurchase
Price ”). Notwithstanding the foregoing, if any portion
of the Option is repurchased by the Company (or the Sponsor
Shareholder pursuant to Section 11 of the Management
Shareholders Agreement) during the Involuntary Termination
Protected Period, and, subsequent to such repurchase, but prior to
the expiration of the Involuntary Termination Protected Period,
either (I) an Initial Public Offering occurs, or (II) the
Company enters into a definitive agreement with respect to a Change
in Control transaction, then, upon the consummation of such Initial
Public Offering or Change in Control, as the case may be, the
Company shall pay to the Employee within sixty (60) days after
the consummation of such Change in Control or Initial Public
Offering an amount per Option equal to the excess, if any, of (a)
the excess, if any, of (1) the Fair Market Value of a
Class A Share on the date of the Change in Control or the
Initial Public Offering over (2) the exercise price of such
Option over (b) the Option Repurchase Price.
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(B)
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Subject to Sections 7(e)
and 8 hereof, any Class A Shares held by the Employee
as a result of the exercise of the Option may be repurchased by the
Company at any time during the two-year period following
(x) the date of Termination of Employment in the event such
Class A Shares were held as of such Termination of Employment
and (y) the exercise of the Option in the event such exercise
occurred after the date of Termination of Employment, each at a
purchase price per Class A Share equal to the Fair Market
Value of such Class A Share as of the date of repurchase.
Notwithstanding the foregoing, if any Class A Restricted
Shares are repurchased by the Company (or the Sponsor Shareholder
pursuant to Section 11 of the Management Shareholders
Agreement) during the Involuntary Termination Protected Period,
and, subsequent to such repurchase, but prior to the expiration of
the Involuntary Termination Protected Period, either (I) an
Initial
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Public Offering occurs, or (II)
the Company enters into a definitive agreement with respect to a
Change in Control transaction, then, upon the consummation of such
Initial Public Offering or Change in Control, as the case may be,
the Company shall pay to the Employee within sixty (60) days
after the consummation of such Change in Control or Initial Public
Offering an amount equal to the excess, if any, of (a) the
Fair Market Value of such Class A Shares on the date of the
Change in Control or the Initial Public Offering over (b) the
purchase price paid to the Employee for such Class A
Shares.
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(iii)
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Significant
Corporate Event .
Notwithstanding the foregoing, if the Company consummates an
acquisition by or merger of the Company through a transaction or
series of transactions with any of those certain Person(s)
described in the resolutions of the Compensation Committee of the
Board dated December 29, 2008 but after which the Sponsor
Shareholders do not in the aggregate possess beneficial ownership
of more than fifty percent (50%) of the voting securities (for
the election of directors) of the Company or its successor (a
“ Significant Corporate Event ”), then if on or
following such Significant Corporate Event (i) (A) the
affirmative written consent of the Sponsor Shareholders or a
representative thereof is not required for the Company to terminate
the Employee’s employment at the time of such termination and
(B) the Employee’s employment with the Company is
terminated by the Company without Cause or by the Employee for Good
Reason, then the applicable vesting provisions shall apply as if a
Change in Control had occurred immediately prior to such
termination of employment, or (ii) (A) the affirmative
written consent of the Sponsor Shareholders or a representative
thereof is required for the Company to terminate the
Employee’s employment at the time of such termination and at
all times theretofor, and (B) the Employee’s employment
with the Company is terminated by the Company without Cause or by
the Employee for Good Reason on or after the date that is eighteen
(18) months following the date of such Significant Corporate
Event, then the applicable vesting provisions shall apply as if a
Change in Control had occurred immediately prior to such
termination of employment.
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(b)
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Resignation
by the Employee .
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(i)
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Treatment . In the event of a Termination of Employment by
the Employee other than for Good Reason or due to death or
Permanent Disability, any unvested portion of the Option shall be
immediately forfeited, and subject to Section 8 hereof and
Section 12 of the Plan, any vested and exercisable portion of
the Option as of the date of such Termination of Employment may be
exercised only prior to the earlier of (A) ninety
(90) days following such Termination of Employment and
(B) the scheduled expiration date of the Option.
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(A)
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To the extent
vested, outstanding and unexercised as of the date of a Termination
of Employment and such Termination of Employment occurs on or
before July 31, 2010, the Option may be cancelled by the
Company at any time following the date of Termination of Employment
prior to its exercise in exchange for a payment to the Employee in
an amount equal to the excess, if any, the (x) lesser of
(A) the Fair Market Value of such Class A Share on the
date of such Termination of Employment, or (B) (i) the
Fair Market Value of such Class A Share on the Grant Date
minus (ii) the value of any dividends, distributions, or
dividend equivalents previously paid to the Employee in respect of
such Class A Share (subject to equitable adjustment in the
Committee’s good faith discretion to reflect dividends,
distributions, corporate transactions, or similar events, to the
extent not reflected in (ii)) (y) over the exercise price of
such Option. With respect to any Termination of Employment
following July 31, 2010, the Option, to the extent vested,
outstanding and unexercised as of the date of a Termination of
Employment, may be cancelled by the Company at any time following
the date of such Termination of Employment prior to its expiration
in exchange for a payment to the Employee in an amount equal to the
Option Repurchase Price.
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(B)
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Subject to Sections 7(e)
and 8 hereof, any Class A Shares held by the Employee
as a result of the exercise of the Option may be repurchased by the
Company at any time during the two-year period following
(x) the date of a Termination of Employment that occurs on or
before July 31, 2010 in the event such Class A Shares
were held as of such Termination of Employment and (y) the
exercise of the Option in the event such exercise occurred after
the date of Termination of Employment (which occurred on or before
July 31, 2010), at a purchase price per Class A Share
equal to the lesser of (A) the Fair Market Value of such
Class A Share on the date of such Termination of Employment,
or (B) (x) the Fair Market Value of such Class A
Share on the Grant Date minus (y)
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the value of any dividends,
distributions, or dividend equivalents previously paid to the
Employee in respect of such Class A Share (subject to
equitable adjustment in the Committee’s good faith discretion
to reflect dividends, distributions, corporate transactions, or
similar events, to the extent not reflected in (y)) but in no event
less than the par value of such Class A Share. With respect to
any Termination of Employment following July 31, 2010, any
Class A Shares held by the Employee as a result of the
exercise of the Option may be repurchased by the Company at any
time during the two-year period following (x) the date of
Termination of Employment in the event such Class A Shares
were held as of such Termination of Employment and (y) the
exercise of the Option in the event such exercise occurred after
the date of Termination of Employment at the Fair Market Value of
such Class A Share on the date of such repurchase.
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(c)
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Death and
Disability .
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(i)
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Treatment . In the event of the Employee’s
Termination of Employment by reason of the Employee’s death
or Permanent Disability (as defined in the Employment Agreement),
subject to Section 8 hereof and Section 12 of the
Plan:
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(A)
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Performance Shares
. Except as provided in the
immediately following sentence, no portion of the Performance
Option that is not vested as of the date of such a Termination of
Employment shall become vested following the date of Termination of
Employment, and any portion of the Performance Option that is
vested as of the date of such Termination of Employment shall be
exercised by the Employee, the Employee’s guardian or legal
representative, or the Employee’s estate or by a person who
acquired the right to exercise such Performance Option by bequest
or inheritance or otherwise by reason of the death of the Employee
(the “ Employee’s Representative ”) prior
to the earlier of (x) the first anniversary of such
Termination of Employment and (y) the scheduled expiration
date of the Option. Notwithstanding the foregoing, if during the
period commencing with such Termination of Employment and ending on
the six month anniversary of such Termination of Employment (the
“ D & D Protected Period ”), either
(x) an Initial Public Offering occurs, or (y) the Company
enters into a definitive agreement with respect to a Change in
Control transaction, then immediately prior to the effective date
of the Initial Public Offering or Change in Control, as applicable
(and subject to the consummation of such Initial Public Offering or
Change in Control), a portion of the Performance Option as
determined pursuant to Exhibit A will vest as if the Change
in Control or Initial Public Offering, as applicable, had
occurred
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immediately prior to such
Termination of Employment and any portion of the Performance Option
that remains unvested at such time shall be forfeited. Except as
provided in the immediately preceding sentence, to the extent the
Performance Option remain outstanding as of the last day of the D
& D Protection Period, it shall be forfeited immediately
following the last day of the D & D Protected Period.
Notwithstanding anything to the contrary in this Section 7(c),
as of the date of a Termination of Employment as a result of an
Employee’s death or Permanent Disability, the Committee, in
its sole discretion, may provide for the vesting of any then
unvested portion of the Performance Option. Any portion of the
Performance Option that becomes vested pursuant to this
Section 7(c)(i)(A) in connection with an Initial Public
Offering or Change in Control may, subject to Section 8 hereof
and Section 12 of the Plan, be exercised by the Employee or
the Employee’s Representative prior to the earlier of
(x) the first anniversary of such Initial Public Offering or
Change in Control and (y) the scheduled expiration date of the
Option.
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(B)
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Performance Exit
Option . Except as
provided in the immediately following sentence, no portion of the
Performance Exit Option that is not vested as of the date of such a
Termination of Employment shall become vested following the date of
Termination of Employment, and any portion of the Performance Exit
Option that is vested as of the date of such Termination of
Employment shall be exercised by the Employee or the
Employee’s Representative prior to the earlier of
(x) the first anniversary of such Termination of Employment
and (y) the scheduled expiration date of the Option.
Notwithstanding the foregoing, if during the D & D Protection
Period either (I) an Initial Public Offering occurs, or (II)
the Company enters into a definitive agreement with respect to a
Change in Control transaction, then immediately prior to the
effective date of the Initial Public Offering or Change in Control,
as applicable (and subject to the consummation of such Initial
Public Offering or Change in Control), a portion of the Performance
Exit Option as determined pursuant to Exhibit A will vest as
if the Change in Control or Initial Public Offering, as applicable,
had occurred immediately prior to such Termination of Employment
and any portion of the Performance Exit Option that remains
unvested at such time shall be forfeited. Except as provided in the
immediately preceding sentence, to the extent the Performance Exit
Option remains outstanding as of the last day of the D & D
Protection Period, it shall be forfeited immediately following the
last day of the D & D Protection Period. Notwithstanding
anything to the contrary in this Section 7(c), as of the date
of a Termination of Employment as a result of an Employee’s
death or Permanent Disability, the Committee, in its
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sole discretion, may provide for
the vesting of any then unvested portion of the Performance Exit
Option. Any portion of the Performance Exit Option that becomes
vested pursuant to this Section 7(c)(i)(B) in connection with
an Initial Public Offering or Change in Control may, subject to
Section 8 hereof and Section 12 of the Plan, be exercised
by the Employee or the Employee’s Representative prior to the
earlier of (x) the first anniversary of such Initial Public
Offering or Change in Control and (y) the scheduled expiration
date of the Option.
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(A)
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To the extent
vested, outstanding and unexercised as of the date of a Termination
of Employment, the Option may be cancelled by the Company at any
time following the date of such Termination of Employment prior to
its expiration in exchange for a payment to the Employee in an
amount per Option equal to the Option Repurchase Price.
Notwithstanding the foregoing, if any portion of the Option is
repurchased by the Company (or the Sponsor Shareholder pursuant to
Section 11 of the Management Shareholders Agreement) during
the D & D Protection Period, and, subsequent to such
repurchase, but prior to the expiration of the D & D Protection
Period, either (I) an Initial Public Offering occurs, or (II)
the Company enters into a definitive agreement with respect to a
Change in Control transaction, then, upon the consummation of such
Initial Public Offering or Change in Control, as the case may be,
the Company shall pay to the Employee within sixty (60) days
after the consummation of such Change in Control or Initial Public
Offering an amount per Option equal to the excess, if any, of (a)
the excess, if any, of (1) the Fair Market Value of a
Class A Share on the date of the Change in Control or the
Initial Public Offering over (2) the exercise price of such
Option over (b) the Option Repurchase Price.
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(B)
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Subject to Sections 7(e)
and 8 hereof, following the Termination of Employment due to
death or Permanent Disability described above, any Class A
Shares held by the Employee as a result of the exercise of the
Option may be repurchased by the Company at any time during the
two-year period following (x) the date of a Termination of
Employment in the event such Class A Shares were held as of
such Termination of Employment and (y) the exercise of the
Option in the event such exercise occurred after the date of
Termination of Employment, each at a purchase price per share equal
to the Fair Market Value of such Class A Share on the date of
repurchase. Notwithstanding the foregoing, if any Class A
Shares are repurchased by the Company (or the Sponsor Shareholder
pursuant to Section 11 of the Management
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Shareholders Agreement) during
the D & D Protected Period, and, subsequent to such repurchase,
but prior to the expiration of the D & D Protected Period
either (I) an Initial Public Offering occurs, or (II) the
Company enters into a definitive agreement with respect to a Change
in Control transaction, then, upon the consummation of such Initial
Public Offering or Change in Control, as the case may be, the
Company shall pay to the Employee within sixty (60) days after
the consummation of such Change in Control or Initial Public
Offering an amount equal to the excess, if any, of (a) the
Fair Market Value of such Class A Shares on the date of the
Change in Control or the Initial Public Offering over (b) the
purchase price paid to the Employee for such Class A
Shares.
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(d)
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Termination
for Cause .
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(i)
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Treatment . In the event of the Employee’s
Termination of Employment by the Employer for Cause, to the extent
outstanding and unexercised as of the date of Termination of
Employment, the Option shall be forfeited as of the date of
termination.
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(ii)
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Repurchase
Right . Subject to
Sections 7(e) and 8 , from and after the date of such
Termination of Employment, the Company may repurchase any or all of
Class A Shares held by the Employee as a result of the
exercise of the Option at any time and from time to time after the
date of such Termination of Employment for a purchase price per
Class A Share equal to the lesser of (1) (A) the
exercise price per Class A Share of such Option minus
(B) the value of any dividends, distributions or dividend
equivalents previously paid to the Employee in respect of such
Class A Share, subject to equitable adjustment in the
Company’s discretion to reflect dividends, Corporate
Transactions, or similar events, to the extent not otherwise
reflected in this clause (B), but in no event less than $0, and
(2) (A) the Fair Market Value of such Class A Share
as of the date of such Termination of Employment for Cause minus
(B) the value of any dividends, distributions or dividend
equivalents previously paid to the Employee in respect of such
share, subject to equitable adjustment in the Company’s
discretion to reflect dividends, Corporate Transactions, or similar
events, to the extent not reflected in this clause (B), but in no
event less than $0.
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(e)
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Expiration
of Repurchase Rights .
Notwithstanding any other provision of this Section 7, the
Company’s repurchase rights set forth
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