1. Reference to
Credit Agreement and Security Agreement Reference
is made to (i) that Credit Agreement dated as of February 6, 2006
(as amended and restated as of November 17, 2006 and as
subsequently amended, supplemented or otherwise modified from time
to time, the “ Credit Agreement ”), among CRC
Health Group, Inc., a Delaware corporation (“ Holdings
”), Borrower, Citibank, N.A., as administrative agent (in
such capacity, the “ Administrative Agent ”),
collateral agent (in such capacity, the “ Collateral
Agent ”), Swing Line Lender and L/C Issuer, each Lender
from time to time party thereto, JPMorgan Chase Bank, N.A., as
Syndication Agent, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Documentation Agent and (ii) that certain Security
Agreement dated as of February 6, 2006 (the “ Security
Agreement ”), among Borrower, Holdings, the Subsidiaries
of the Borrower identified therein and Citibank, N.A., as
Collateral Agent for the Secured Parties. Capitalized
terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement and the
Security Agreement referred to therein.
Exhibit 10.3i
ADIRONDACK LEADERSHIP EXPEDITIONS,
LLC
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the “
Agreement ”), dated as of April 1, 2004, is entered
into by and between ADIRONDACK LEADERSHIP EXPEDITIONS, LLC, a
Delaware limited liability company (the “ Company
”), and the undersigned, SUE CROWELL (the “
Employee ”).
RECITALS
WHEREAS, the Company is an indirect,
wholly-owned subsidiary of Aspen Education Group, Inc., a
California corporation (“ AEG ”), and a direct,
wholly-owned subsidiary of Aspen Youth, Inc., a California
corporation (“ Aspen ”).
WHEREAS, Employee is employed by AEG as the head
of the wilderness division of AEG.
WHEREAS, in order to give Employee an
opportunity to acquire an interest in the Company as an incentive
for Employee to continue participating in the affairs of the
Company, the Company desires to issue certain membership interests
to Employee pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises
and of the mutual agreements, representations, warranties,
provisions, covenants and other consideration, the sufficiency and
adequacy of which is hereby acknowledged, the Company and Employee
agree as follows:
1.
Issuance of Membership Interest . On April 1, 2008 (the
“ Vesting Date ”), the Company shall issue to
Employee ten (10) units of the Company (the “ Units
”), which represent ten percent (10%) of the issued and
outstanding membership interests of the Company. On such date of
issuance, the Company shall deliver to Employee a membership
certificate registered in Employee’s name representing the
Units and Employee shall sign a receipt acknowledging receipt of
the Units.
2.
Amended and Restated Operating Agreement . Notwithstanding
the foregoing, the Company shall not issue the Units to Employee
unless and until Employee signs an Amended and Restated Operating
Agreement, effective as of the date of issuance of the Units, that
includes the transfer restrictions and other rights and obligations
of the Company and Employee as set forth herein. Notwithstanding
anything to the contrary herein, the Amended and Restated Operating
Agreement shall provide that all Distributions (as defined therein)
shall be made to Aspen and that no Distribution shall be made to
Employee. The Company shall provide such Amended and Restated
Operating Agreement to Employee for review no later than 30 days
prior to the Vesting Date.
3.
Sale of the Company . In the event Aspen elects
to sell the membership interests of the Company, whether through a
direct purchase or through a merger or other type of transaction,
or all or substantially all of the assets of the Company, to a
third party (a “ Call Event ”) on or
after the Vesting Date, the Company shall notify Employee of such
sale at least ten
days prior to the closing of such sale and
Employee shall sell or transfer the Units to the Company on or
before the closing date.
(a) In
consideration for such sale or transfer of the Units to the
Company, Employee shall receive an amount of consideration (the
“ Transfer Price ”) equal to: the product of (i)
the sum of (X) twelve month trailing EBITDA for the twelve month
period ending on the last day of the month immediately preceding
the month in which such Call Event occurs, minus (Y) an amount
equal to maintenance capital expenditures for such twelve month
period; multiplied by (ii) 4.5; multiplied by (iii) 10%.
As an example only, if the twelve month trailing
EBIDTA for the relevant period is $1,000,000 and maintenance
capital expenditures for that period is $100,000, the Transfer
Price would be equal to:
($1,000,000 - $100,000) x 4.5 x 0.10 =
$405,000
(b) The
consideration that Employee shall receive shall be in the same form
or type of consideration as Aspen receives for the sale of such
membership interests or assets. For example, if Aspen receives
shares of capital stock of the third party purchaser, Employee
shall be entitled to that number of such shares of capital stock of
the third party purchaser equal to the product of the Transfer
Price divided by the per Unit price Aspen receives for the sale of
such membership interests or assets. Employee shall deliver the
membership certificate representing the Units to the Company on the
date and at the location designated by the Company and shall sign
such agreements or other documents in connection with the sale of
the Units to the Company as the Company reasonably
requests.
4.
Conversion Upon an IPO . In the event AEG completes an
initial public offering (an “ IPO ”) of its
common stock prior to the Vesting Date, the Employee’s right
to receive the Units shall automatically be converted into the
right to receive a number of shares of common stock of AEG (which
shares of common stock shall not be registered under the Securities
Act of 1933, as amended (the “ Act ”)) on the
Vesting Date equal to the product of (i) the Transfer Price that
Employee would have received had a Call Event occurred on the
Vesting Date, divided by (ii) the closing price per share of the
AEG common stock on the Vesting Date. For purposes of this
Agreement, an “initial public offering” shall mean the
initial firm commitment underwritten public offering of the common
stock of Aspen, immediately following which such common stock is
listed for trading on the New York Stock Exchange or for quotation
on the NASDAQ National Market System or other agreed,
internationally recognized stock exchange.
5.
Termination of Employment .
(a) If
prior to the Vesting Date (i) Employee ceases to be an employee of
AEG, Aspen or the Company, or ceases to provide services to the
Company, whether due to Employee’s death, disability or
voluntary or involuntary termination, or (ii) the membership
interests or all or substantially all of the assets of the Company
are sold or transferred to a third party that is not an affiliate
of AEG, this Agreement shall automatically terminate and have no
further force or effect and Employee shall not be
consideration pursuant to this Agreement or in
connection with the termination of this Agreement.
(b) If
after the Vesting Date Employee ceases to be an employee of AEG,
Aspen or the Company, or ceases to provide services to the Company,
whether due to Employee’s death, disability or voluntary or
involuntary termination, the Company shall have the right, but not
the obligation, to purchase the Units from the Employee for a
purchase price equal to the Transfer Price; provided that for
purposes of this Section 5(b), the Transfer Price shall be
calculated using the twelve month period ending on the last day of
the month immediately preceding the month in which Employee’s
employment terminated.
6.
Right of First Refusal . Employee agrees that in the event
Employee desires to transfer any or all of her Units to another
party, Employee shall give prior written notice to the Company
describing in reasonable detail the terms of such bona fide offer.
For a period of thirty (30) days after such notice of transfer is
received by the Company (the “ Exercise Period
”), the Company shall have a right to repurchase all or any
portion of the Units to be transferred at the lower of the price
set forth in the transfer notice or the Transfer Price, and upon
the terms set forth in the transfer notice (the “
Company’s First Refusal Rights ”). The Company
shall exercise the Company First Refusal Rights by giving Employee
written notice of such intention prior to the expiration of the
Exercise Period.
7.
Representations and Warranties of the Company . The Company
hereby represents and warrants to Employee that, as of the date
hereof:
(a) The
Company is a limited liability company validly existing in good
standing under the laws of the state of Delaware and has all
requisite power and authority to carry on its business as now
conducted and as proposed to be conducted and to enter into and
perform this Agreement and to carry out the transactions
contemplated hereby. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its
business or properties.
(b) The
outstanding membership interests of the Company consists of 100
Units.
8.
Representations and Warranties of Employee . Employee
acknowledges, represents and warrants to the Company as
follows:
(a) Employee
understands that the Units have not been registered under the Act,
or under any other federal or state law, and that the Company does
not currently contemplate such a registration.
(b) Employee
has such knowledge, skill and experience in business, financial and
investment matters so that Employee is capable of evaluating the
merits and risks of an investment in the Units. To the extent that
Employee has deemed it appropriate to do so, Employee has retained,
and relied u
