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Exhibit
10.8
FORM OF SALE PARTICIPATION
AGREEMENT
[date]
To: The Person whose name is set forth
on the signature page hereof
Dear Sir or Madam:
You have entered into a
Management Stockholder’s Agreement, dated as of the date
hereof, among New Omaha Holdings Corporation, a Delaware
corporation (the “ Company ”), New Omaha
Holdings L.P., a Delaware limited partnership and the parent entity
of the Company (“ Parent ”), and you (the
“ Stockholder’s Agreement ”) relating to
Rollover Stock (as defined in the Stockholder’s Agreement),
the purchase by you of Purchased Stock (as defined in the
Stockholder’s Agreement) and the grant by the Company to you
of options (together with any other options granted to you, “
Options ”) to purchase shares of common stock, par
value $0.01 per share, of the Company (“ Common Stock
”, which includes Purchased Stock). Parent hereby agrees with
you as follows, effective as of the Closing Date (as defined in the
Stockholder’s Agreement):
1. (a) In the event that at
any time on or after the Closing Date, (i) Parent,
(ii) any of the Investors (as defined in the
Stockholder’s Agreement) or (ii) any of their respective
Affiliates (as defined in the Stockholder’s Agreement)
(collectively, the “ Selling Entities ”)
proposes to sell, directly or indirectly, for cash or any other
consideration any shares of Common Stock owned by any such Selling
Entity, in any transaction other than (x) a Public Offering
(as defined in the Stockholder’s Agreement), (y) a sale,
directly or indirectly, to an Affiliate of Parent or an Investor,
or (z) an Initial Syndication (as such term is hereinafter
defined), then, unless Parent is entitled to and does exercise the
drag-along rights pursuant to Paragraph 7 below and the Drag
Transaction is consummated, Parent will notify you or your
Management Stockholder’s Estate or Management
Stockholder’s Trust (as such terms are defined in the
Stockholder’s Agreement, and collectively with you, the
“ Management Stockholder Entities ”), as the
case may be, in writing (a “ Notice ”) of such
proposed sale (a “ Proposed Sale ”) specifying
the principal terms and conditions of the Proposed Sale (the
“ Material Terms ”) including (A) the
amount of Common Stock to be included in the Proposed Sale,
(B) the percentage of the outstanding Common Stock at the time
the Notice is given that is represented by the number of shares to
be included in the Proposed Sale, (C) the price per share of
Common Stock subject to the Proposed Sale, including a description
of any pricing formulae and of any non-cash consideration
sufficiently detailed to permit valuation thereof, (D) the Tag
Along Sale Percentage of Parent and (E) the name and address
of the Person (as defined in the Stockholder’s Agreement) to
whom the offered Common Stock is proposed to be issued. For
purposes of this Paragraph 1, the term “Initial
Syndication” shall mean a sale to any unaffiliated person or
group of persons in connection with the initial syndication of the
Selling Entities’ investment in the Common Stock, which
sale(s) occur at any time(s) within the first six (6) months
following the
Closing Date (as such term is defined in
the Stockholder’s Agreement) at a per share sale price that
does not exceed 110% of the Base Price (as such term is defined in
the Stockholder’s Agreement).
(b) If, within
10 business days after the delivery of Notice under
Section 1(a), Parent receives from a Management Stockholder
Entity a written request (a “ Request ”) to
include Common Stock held by the Management Stockholder Entity in
the Proposed Sale (which Request shall be irrevocable except
(a) as set forth in clauses (c) and (d) of this
Section 1 below or (b) if otherwise mutually agreed to in
writing by the Management Stockholder Entity and Parent), the
Common Stock held by you plus all shares of Common Stock which you
are then entitled to acquire under any unexercised portion of
Options, to the extent such Option is then exercisable or would
become exercisable as a result of the consummation of the Proposed
Sale (not in any event to exceed the Tag Along Sale Percentage
multiplied by the total number of shares of Common Stock held by
the Management Stockholder Entities in the aggregate, including all
shares of Common Stock which you are then entitled to acquire under
any unexercised portion of Options, to the extent such Option is
then exercisable or would become exercisable as a result of the
consummation of the Proposed Sale) will be so included as provided
herein. Promptly after the execution of the Sale Agreement, Parent
will furnish each Management Stockholder Entity with a copy of the
Sale Agreement, if any. For purposes of this Agreement, the “
Tag Along Sale Percentage ” shall mean the fraction,
expressed as a percentage, determined by dividing the number of
shares of Common Stock to be purchased from the Selling Entity by
the total number of shares of Common Stock owned directly or
indirectly by the Selling Entities.
(c) Notwithstanding anything
to the contrary contained in this Agreement, if any of the economic
terms of the Proposed Sale change adversely, including without
limitation if the per share price will be less than the per share
price disclosed in the Notice, or any of the other principal terms
or conditions will be materially less favorable to the selling
Management Stockholder Entities than those described in the Notice,
Parent will provide written notice thereof to each Management
Stockholder Entity who has made a Request and each such Management
Stockholder Entity will then be given an opportunity to withdraw
the offer contained in such holder’s Request (by providing
prompt (and in any event within five (5) business days;
provided that, notwithstanding the foregoing, if the proposed
closing with respect to the Proposed Sale is to occur within five
(5) business days or less, no later than three
(3) business days prior to such closing) written notice of
such withdrawal to Parent), whereupon such withdrawing Management
Stockholder Entity will be released from all obligations
thereunder.
(d) If the Selling Entity
does not complete the Proposed Sale by the end of the 120th day
following the date of the effectiveness of the Notice, each selling
Management Stockholder Entity may elect to be released from all
obligations under the applicable Request by notifying Parent in
writing of its desire to so withdraw. Upon receipt of that
withdrawal notice, the Notice of the relevant Management
Stockholder Entity shall be null and void, and it will then be
necessary for a separate Notice to be furnished, and the terms and
provisions of clauses (a) and (b) of this Section 1
separately complied with, in order to consummate such Proposed Sale
pursuant to this Section 1, unless the failure to complete
such proposed sale resulted from any failure by any selling
Management Stockholder Entity to comply with the terms of this
Section 1.
2
2. (a) The number of shares
of Common Stock that you will be permitted to include in a Proposed
Sale pursuant to a Request will be the lesser of (A) the
number of shares of Common Stock that you have offered to sell in
the Proposed Sale as set forth in the Request and (B) the
number of shares of Common Stock determined by multiplying
(i) the number of shares of Common Stock to be included in the
Proposed Sale by (ii) a fraction the numerator of which is the
number of shares of Common Stock owned by you plus all
shares of Common Stock which you are then entitled to acquire under
any unexercised portion of Options, to the extent such Option is
then exercisable or would become exercisable as a result of the
consummation of the Proposed Sale and the denominator of which is
the total number of shares of Common Stock owned by the Management
Stockholder Entities and all other Persons participating in such
sale as tag-along sellers pursuant to Other Management Stockholder
Agreements (as defined in the Stockholder’s Agreement) or
other agreements (all such participants, the “ Tag Along
Sellers ”) plus all shares of Common Stock which
you and such Persons are then entitled to acquire under any
unexercised portion of Options, to the extent such Options are then
exercisable or would become exercisable as a result of the
consummation of the Proposed Sale, plus all shares of Common
Stock owned by the Selling Entities. Each Tag Along Seller shall be
permitted to conditionally exercise Options such that if the
Proposed Sale in not consummated, such exercise shall be void and
such Options shall remain exercisable on the same terms and
conditions as prior to such conditional exercise.
(b) If one or more Tag Along
Sellers elect not to include the maximum number of shares of Common
Stock which such holders would have been permitted to include in a
Proposed Sale pursuant to Paragraph 2(a) (such non-included shares,
the “ Eligible Shares ”), then each of the
Selling Entities, or the remaining Tag Along Sellers, or any of
them, will have the right to sell in the Proposed Sale a number of
additional shares of their Common Stock equal to their pro rata
portion of the number of Eligible Shares, based on the relative
number of shares of Common Stock then held by each such holder
plus all shares of Common Stock which you are then entitled
to acquire under any unexercised portion of the Option, to the
extent such Option is then exercisable or would become exercisable
as a result of the consummation of the Proposed Sale,
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