MANAGEMENT STOCKHOLDER’S
AGREEMENT
This Management Stockholder’s
Agreement (this “ Agreement ”) is entered into
as of the date indicated on Schedule I hereto (the
“ Effective Date ”) among Dollar General
Corporation, a Tennessee corporation (the “ Company
”), Buck 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 , the Management Stockholder has been selected by the
Company (i) to be permitted to transfer to the Company cash in
exchange for shares of Common Stock (the “ Purchased
Stock ”); and/or (ii) to receive options to purchase
shares of Common Stock (the “ Options ”)
pursuant to the terms set forth below and the terms of the 2007
Stock Incentive Plan for Key Employees of Dollar General
Corporation and its Affiliates, as such Plan may be amended from
time to time (the “ Option Plan ”), and the
Stock Option Agreement dated as of the Effective Date, entered into
by and between the Company and the Management Stockholder (the
“ Stock Option Agreement ”); and
WHEREAS , this Agreement is one of several other agreements
(“ Other Management Stockholders Agreements ”)
which have in the past, 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;
Options.
(a) Subject to the
terms and conditions hereinafter set forth, the Management
Stockholder hereby subscribes for and shall purchase, as of the
Effective Date, and the Company shall issue, as of the Effective
Date, and deliver promptly thereafter to the Management
Stockholder (if such shares are issued in certificated form) the
number of shares of Purchased Stock equal to the investment amount
set forth on the Management Stockholder’s signature page
hereto divided by the per share purchase price which shall
equal the Fair Market Value on the Effective Date (the “
Base Price ”), payable by the Management Stockholder
on the Effective Date by check payable to Dollar General
Corporation.
(b) Subject to the
terms and conditions hereinafter set forth and as set forth in the
Option Plan, the Company will grant to the Management Stockholder
Options to acquire shares of Common Stock, at an initial per share
exercise price equal to the Fair Market Value of the
Company’s Common Stock on the date the Options are granted
(the “ Grant Date ”), and the Parties shall
execute and deliver to each other copies of the Stock Option
Agreement.
(c) 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”
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laws of such jurisdiction or (ii) is not
an employee or director of the Company or its subsidiaries as of
the date of such sale.
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 and, at the time of exercise, Common Stock issuable
upon exercise of Options (“ Option Stock ”;
together with all Purchased Stock and any other Common Stock
otherwise acquired and/or held by the Management Stockholder
Entities as of or after the date hereof, “ Stock
”), except as otherwise provided for 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 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.
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 of counsel is required in
connection therewith: (1) a transfer made pursuant to Sections
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) a transfer 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 date hereof 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 Section 3(d) below, (4) a
transfer of Stock made by the Management Stockholder to Other
Management Stockholders, provided that it is
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expressly understood that any such
transferee(s) shall be bound by the provisions of this Agreement
(in addition to the provisions set forth in any 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
AMONG DOLLAR GENERAL CORPORATION (THE “COMPANY”), BUCK
HOLDINGS, L.P., AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE
HEREOF OR THE SALE PARTICIPATION AGREEMENT AMONG SUCH MANAGEMENT
STOCKHOLDER AND BUCK HOLDINGS, L.P., IN EACH CASE DATED AS OF
[EFFECTIVE DATE] (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF
THE COMPANY) AND ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.”
(c) The Management
Stockholder acknowledges that he has been advised that (i) a
restrictive legend in the form heretofore set forth shall be placed
on the certificates (if any) representing the Stock and (ii) 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, if any, 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 the Management Stockholder vis-á-vis any other
shareholders 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 IPO and 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
4
effective date of such registration
statement, unless otherwise agreed to in writing by the
Company.
(f) The Management
Stockholder represents and warrants that (i) with respect to
the Purchased Stock and Option Stock, the Management Stockholder
has received and reviewed the available information relating to
such Stock, 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 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, and (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.
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 Grant Date;
provided , however , that during such period, the
Management Stockholder may transfer shares of Stock during such
time pursuant to one of the following exceptions:
(i) transfers permitted by Sections 5 or 6;
(ii) transfers permitted by clauses (2), (3) and (4) 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, if
any, 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 ”). In addition, during the
period commencing on the fifth anniversary of the Grant 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.
(b) Notwithstanding
anything to the contrary herein, (i) Section 3(a) shall
terminate and be of no further force or effect upon the occurrence
of a Change in Control and (ii) upon the occurrence of any sale or
other disposition of any percentage of limited partnership units of
Parent held by the Sponsors or their Affiliates who are limited
partners of Parent, the restrictions on transfer of shares of
Common Stock contained in Section 3(a) shall cease to be of any
further force or effect with respect to the percentage of shares of
Common Stock held by the Management Stockholder Entities equal to
the quotient of the number of limited partnership units of Parent
sold or disposed of by the Sponsors or such Affiliates in such
transaction divided by the aggregate number of Limited Partnership
Units owned by the Sponsors or such Affiliates prior to such
transaction, and for the avoidance of doubt, such transfer
restrictions shall continue to apply to the remaining shares of
Common Stock held by the Management Stockholder
Entities.
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(c) 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.
(d) 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 Parent 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 Grant 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
6
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, if, prior to the fifth anniversary of the Grant
Date, 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, for 365 days (the “ Put Period ”)
following the date of such termination for death or Disability,
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 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, 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) 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 no later than the twentieth (20
th ) business day (such date to be determined by
the
7
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 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 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 or if a repurchase would reasonably be expected to be
prohibited by the Tennessee Business Corporation Act (“
TBCA ”) or any federal or state securities laws or
regulations (or if the Company reincorporates in another state, the
business corporation law of such state) (each such occurrence being
an “ Event ”), the Company shall not be
obligated to repurchase any of the Stock or the Options from the
applicable Management Stockholder Entities to the extent it would
cause any such default 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, this Section 5 shall terminate and be
of no further force or effect upon the occurrence of such Change in
Control.
8
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 Grant 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 Options 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 death or
Disability), and Termination by the Management Stockholder with
Good Reason . If, prior to the fifth anniversary of the
Grant 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 (which shall
constitute any termination without Cause under any applicable
employment agreement) (other than due to his death or Disability),
or (ii) by the Management Stockholder with Good Reason (each,
a “ Section 6(b) Call Event ”)
then:
(i) With respect to Stock, the
Company may purchase 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 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 of a share of Stock underlying such
Options over the Option Exercise Price and (y) the number of
Exercisable Option Shares (solely related to vested Options), which
vested Options shall be terminated in exchange for such payment.
In the event the Company elects to repurchase under this
Section 6(b)(ii) and the foregoing Option Excess Price is zero or a
negative number, all outstanding exercisable vested Options shall
be automatically terminated without any payment in respect thereof;
and
(iii) With respect to unvested
Options, all outstanding unvested Options shall automatically be
terminated without any payment in respect thereof.
9
(c) Termination for
Death or Disability . if, prior to the fifth anniversary
of the Grant Date, the Management Stockholder’s employment
with the Company (or, if applicable, its subsidiaries or
affiliates) is terminated as a result of the death or Disability of
the Management Stockholder (each a “ Section 6(c)
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 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 of a share of Stock underlying such
Options over the Option Exercise Price and (y) the number of
Exercisable Option Shares (solely related to vested Options), which
vested Options shall be terminated in exchange for such payment.
In the event the Company elects to repurchase under this
Section 6(c)(ii) and the foregoing Option Excess Price is zero or a
negative number, all outstanding exercisable vested Options shall
be automatically terminated without any payment in respect thereof;
and
(iii) With respect to unvested
Options, all outstanding unvested Options shall automatically be
terminated without any payment in respect thereof.
(d) Termination by
the Management Stockholder without Good Reason . If,
prior to the fifth anniversary of the Grant Date, the Management
Stockholder’s active employment by the Company (and/or, if
applicable, its subsidiaries or affiliates) is terminated by the
Management Stockholder without Good Reason (a “ Section
6(d) Call Event ”), then:
(i) With respect to any Purchased
Stock, the Company may purchase, on one occasion, all or any
portion of the shares of such Purchased Stock then held by the
applicable Management Stockholder Entities at a per share purchase
price equal to the lesser of (x) the Fair Market Value and (y) the
sum of (A) the Base Price (or other applicable price paid by such
Management Stockholder Entities for such Purchased Stock),
plus (B) the Applicable Percentage of the excess of the Fair
Market Value over the Base Price (or other applicable price paid by
such Management Stockholder Entities for such Purchased Stock), as
of the Repurchase Calculation Date;
(ii) With respect to any Option
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 the lesser of (x) the Fair Market Value as of the Repurchase
Calculation Date and (y) the applicable per share purchase price
paid by the applicable Management Stockholder Entities for such
Stock; and
(iii) With respect to the Options,
all such Options (whether or not then exercisable) held by the
applicable Management Stockholder Entities shall automatically be
terminated without any payment in respect thereof.
(e) Call Notice
. The Company shall have a period (the “ Call
Period ”) of one hundred eighty (180) days from the date
of any Call Event (or, if later, with respect to a
10
Section 6(a) Call Event, the date
after discovery of, and the applicable cure period for, an
impermissible transfer constituting a Section 6(a) Call Event)
in which to give notice in writing to the Management Stockholder of
its election to exercise its rights and obligatio
