Exhibit 10.1
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STOCKHOLDERS AGREEMENT
DATED AS OF OCTOBER 31, 2006
BY AND AMONG
COLLINS I HOLDING CORP.,
ITS STOCKHOLDERS
AND
COLLINS INDUSTRIES, INC.
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TABLE OF CONTENTS
PAGE
STOCKHOLDERS
AGREEMENT.........................................................1
ARTICLE
I......................................................................1
REPRESENTATIONS AND WARRANTIES OF THE
PARTIES.........................1
ARTICLE
II.....................................................................2
VOTING
AGREEMENTS.....................................................2
ARTICLE
III....................................................................3
SPECIAL APPROVAL
RIGHTS...............................................3
ARTICLE
IV.....................................................................5
TRANSFERS OF
SECURITIES...............................................5
ARTICLE
V......................................................................6
TAKE-ALONG RIGHTS; SALE OF THE
COMPANY................................6
ARTICLE
VI.....................................................................8
LIQUIDITY
EVENT.......................................................8
ARTICLE
VII....................................................................9
PUTS AND
CALLS........................................................9
ARTICLE
VIII..................................................................12
AMENDMENT AND
TERMINATION............................................12
ARTICLE
IX....................................................................13
MISCELLANEOUS........................................................13
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") is entered into
as of October 31,
2006,
by and among (i) Collins I Holding
Corp.,
a Delaware
corporation ("HOLDINGS"),
(ii) Collins Industries, Inc., a Missouri corporation
(the
"COMPANY"),
(iii) the parties to this
Agreement
who are
identified
as
Employees in joinders to this Agreement (each, an "EMPLOYEE," and
collectively,
the
"EMPLOYEES"),
(iv) AIP/CHC
Holdings,
LLC, a Delaware
limited
liability
company ("AIP"), (v) BNS Holding,
Inc., a Delaware corporation ("BNS") and (vi)
each other holder of Securities who hereafter
executes a separate
agreement to
be bound by the terms hereof (a "NEW
STOCKHOLDER").
AIP, BNS and the Employees
are sometimes
referred to herein as "STOCKHOLDERS."
Certain
capitalized terms
used herein are defined in Section 9.1.
The parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
1.1.
REPRESENTATIONS
AND
WARRANTIES
OF
HOLDINGS
AND
THE
COMPANY.
Each of Holdings and the Company hereby represents and warrants to
the
Stockholders that as of the date of this Agreement:
(a) it is a corporation
duly organized,
validly existing and
in good standing under the laws of the its jurisdiction of
incorporation, it has
full
corporate
power and
authority
to
execute,
deliver
and
perform
this
Agreement
and to
consummate
the
transactions
contemplated
hereby,
and the
execution, delivery and performance by it of this Agreement and the
consummation
of the
transactions
contemplated
hereby
have
been
duly
authorized
by all
necessary corporate action;
(b) this
Agreement
has been duly and
validly
executed
and
delivered
by
it
and
constitutes
a
legal
and
binding
obligation
of
it,
enforceable against it in accordance with its terms; and
(c) the
execution,
delivery
and
performance
by it of this
Agreement and the
consummation by it of the
transactions
contemplated
hereby
will not,
with or without
the
giving of notice or lapse of time,
or both (i)
violate
any
provision
of law,
statute,
rule or
regulation
to
which it is
subject,
(ii) violate any order,
judgment or decree applicable to it, or (iii)
conflict with, or result in a breach or default under,
any term or condition of
its
Articles or
Certificate
of
Incorporation
or Bylaws or any
agreement or
instrument to which it is a party or by which it is bound.
1.2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.
Each
Stockholder
represents
and
warrants
to
Holdings,
the Company and the other
Stockholders
that,
as of the time
such
Stockholder
becomes
a party to this
Agreement:
1
(a) this Agreement (or the separate joinder agreement executed
by such
Stockholder)
has been duly and validly
executed and delivered by such
Stockholder,
and this Agreement
constitutes a legal and binding
obligation of
such
Stockholder,
enforceable
against such Stockholder in accordance with its
terms; and
(b)
the
execution,
delivery
and
performance
by
such
Stockholder
of this
Agreement
(or any
joinder
to
this
Agreement)
and the
consummation by such
Stockholder of the transactions
contemplated
hereby (and
thereby)
will not,
with or without
the giving of notice or lapse of time,
or
both (i) violate any provision of law, statute, rule or regulation
to which such
Stockholder is subject, (ii) violate any order, judgment or decree
applicable to
such
Stockholder,
or (iii)
conflict
with,
or result in a breach or
default
under,
any term or condition of any agreement or other instrument to which
such
Stockholder is a party or by which such Stockholder is bound.
ARTICLE II
VOTING AGREEMENTS
2.1. ELECTION OF DIRECTORS.
(a) Each Stockholder hereby agrees that such Person will vote,
or cause to be voted,
all voting
securities of Holdings over which such Person
has the power to vote or direct the voting, and will take all other
necessary or
desirable
action
within such
Person's
control,
and
Holdings
will take all
necessary
and desirable
actions
within its control,
to cause the
authorized
number of
directors
of the
Board
(the
"BOARD")
to be
established
at five
directors,
and to elect or cause to be
elected
to the
Board
and cause to be
continued in office (i) at least one
individual
designated
by AIP and (ii) at
least four individuals designated by BNS.
(b) If at any time AIP shall notify the other
parties to this
Agreement
of its
desire to
remove,
with or
without
cause,
any
individual
designated
by AIP from a Holdings
directorship,
all such parties so notified,
will vote,
or cause to be voted,
all voting
securities of Holdings over which
they have the power to vote or direct the voting,
and shall take all such other
actions promptly as shall be necessary or desirable to cause the
removal of such
director.
(c) If at any time BNS shall notify the other
parties to this
Agreement
of its
desire to
remove,
with or
without
cause,
any
individual
designated
by BNS from a Holdings
directorship,
all such parties so notified,
will vote,
or cause to be voted,
all voting
securities of Holdings over which
they have the power to vote or direct the voting,
and shall take all such other
actions promptly as shall be necessary or desirable to cause the
removal of such
director.
(d) If at any time any individual ceases to serve on the Board
(whether due to
resignation,
removal or otherwise),
the party that designated
such individual to serve on the Board shall be entitled to
designate a successor
director to fill the vacancy created thereby.
Each Stockholder
agrees to vote,
or cause to be voted,
all voting
securities of Holdings over which such Person
has the power to vote or
direct
the
voting,
and
shall
take all such
other
actions as shall be necessary or desirable to cause the designated
successor to
be elected to fill such vacancy.
2
(e) Nothing in this Agreement shall be construed to impair any
rights that the
Stockholders may have to remove any director for cause pursuant
to Section
141(k) of the Delaware
General
Corporation
Law (or any
successor
provision).
No such removal for cause of an individual
designated
pursuant to
this Section 2.1 to be elected as a director of Holdings shall
affect the rights
of AIP and BNS to designate a different
individual pursuant to this Section 2.1
to fill the directorship from which such individual was removed.
(f) The
board of
directors
of the
Company
and each of its
Subsidiaries shall have the same composition as the Board.
2.2. OTHER VOTING MATTERS. Each Stockholder hereby agrees that
such Person will vote, or cause to be voted,
all voting
securities of Holdings
over which such
Person
has the power to vote or direct the
voting,
either in
person or by proxy, whether at a stockholders meeting, or by
written consent, in
the manner in which a Required
Majority of the Board shall direct in connection
with the approval of any
amendment or amendments
to Holdings'
Certificate
of
Incorporation,
the merger,
share
exchange,
combination or
consolidation
of
Holdings with any other Person or Persons,
the sale,
lease, or exchange of all
or
substantially
all of the property
and assets of Holdings,
the Company and
their
respective
Subsidiaries,
and
the
reorganization,
recapitalization,
liquidation, dissolution or winding-up of Holdings or the Company.
ARTICLE III
SPECIAL APPROVAL RIGHTS
3.1 RESTRICTED ACTIONS. None of Holdings,
the Company nor any of their
respective
Subsidiaries
shall take any of the actions set forth in clauses (a)
through (l) below without the Required Consent of the Stockholders:
(a) except as provided
in Article VI,
enter into any merger,
consolidation,
business combination,
joint venture or other material corporate
transaction;
(b)
sell,
assign,
convey
or
otherwise
dispose
of all or
substantially all of its assets;
(c) adopt
any plan or
proposal
for a
complete
or
partial
liquidation or dissolution or any reorganization or
recapitalization or commence
any case,
proceeding or action seeking relief under any existing or future
laws
relating to bankruptcy, insolvency, conservatorship or relief of
debtors;
(d) enter into any
transaction
with any
Stockholder
or any
Affiliate of a Stockholder, other than Permitted Stockholder
Transactions;
(e)
authorize
or issue,
or
obligate
itself to issue,
any
equity
security
(including
a
security
convertible
into or
exercisable
or
exchangeable for any equity security);
(f) change its fiscal year or make any material
change in its
accounting
policies or procedures,
unless
required under GAAP or the Internal
Revenue Code of 1986, as amended;
3
(g) take, or permit to be taken, any action that would prevent
the
business of the Company,
as it currently
exists,
from
continuing
on an
ongoing basis;
(h) modify,
amend or take any action in
contravention of its
articles
of
incorporation
or
bylaws
(or
equivalent
governing
documents),
including, without limitation, any term of the AIP Securities;
(i) except as provided in Section 3.2,
below,
establish
any
committee of the Board, the Company or any Subsidiary;
(j)
establish
or
acquire
any
subsidiaries
that
are
not
wholly-owned by the Company or any of its Subsidiaries;
(k)
commingle or permit to be
commingled
any funds with the
funds of any other Person; or
(l) agree or commit to any of the foregoing.
(m) Notwithstanding
the foregoing,
nothing in this Agreement
shall be
construed
to in any way
limit
or
impair
the
rights
or
remedies
available
to the Agent or Lenders
under the Credit
Agreement
or the
related
security
documents
entered into in
connection
therewith,
or the Orix Credit
Agreement
or
the
related
security
documents
entered
into
in
connection
therewith.
3.2 OPERATIONS COMMITTEE.
(a)
The
Board
shall
have
a
committee
having
the
responsibilities and authority set forth in this Section 3.2, and
which shall be
designated the "OPERATIONS COMMITTEE." Except upon the occurrence
and during the
continuation
of a Suspension
Event,
the members of the
Operations
Committee
shall
consist of the member of the Board
designated by AIP pursuant to Section
2.1(a),
above.
Subsequent to the occurrence and during the
continuation
of a
Suspension
Event, the members of the Operations
Committee shall consist of all
of the members of the Board.
(b) The
Operations
Committee
shall have the
authority
and
responsibility to:
(i)
supervise
the
overall
implementation
of
the
Company's Business Plan; and
(ii)
supervise
the
development
of
the
Company's
annual operating and capital budgets, which shall be subject to
Board approval.
4
ARTICLE IV
TRANSFERS OF SECURITIES
4.1. RESTRICTIONS ON TRANSFER OF SECURITIES.
(a)
EMPLOYEE
SECURITIES.
GENERAL.
No
holder
of
Employee
Securities may Transfer any Employee
Securities
except in an
Exempt Employee Transfer.
(b) INVESTOR SECURITIES RIGHT OF FIRST OFFER.
Neither AIP nor
BNS may Transfer any Securities
except,
respectively,
in an
Exempt AIP Transfer or an Exempt BNS Transfer.
(c) EXCLUDED TRANSFERS.
The rights and restrictions contained
in Section 4.1(a) shall not apply with respect to any of the
following Transfers
of Securities:
(i)
any
Transfer
of
Securities
to
and
among
stockholders
of Holdings
(subject to compliance with Sections 4.2 and 4.3, and
except as provided in Section 6.1);
(ii) any Transfer of Securities
in
accordance
with
Section 5.1;
(iii) any Transfer of
Securities
incidental
to the
exercise,
conversion or exchange of such
securities
in accordance
with their
terms,
any
combination
of shares
(including
any reverse stock split) or any
recapitalization,
reorganization
or
reclassification
of,
or any
merger
or
consolidation involving, Holdings; and
(iv) any
Transfer
of
Securities
to members of the
management
of
Holdings,
management
of the
Company
or
management
of their
respective
Subsidiaries
(other than a Transfer of all or substantially
all of
the Securities held by BNS).
4.2.
SECURITIES
ACT
COMPLIANCE.
No
Securities
may
be
transferred by a Stockholder
(other than pursuant to an effective
registration
statement
under the Securities Act) unless such
Stockholder
first delivers to
Holdings an opinion of counsel,
which
opinion and counsel
shall be reasonably
satisfactory
to Holdings to the effect that such Transfer is not required to be
registered under the Securities Act.
5
4.3.
CERTAIN
TRANSFEREES
BOUND
BY
AGREEMENT.
Subject
to
compliance
with the other
provisions of this Article IV, any
Stockholder
may
Transfer any Securities
held by such
Stockholder in accordance with applicable
law;
PROVIDED,
HOWEVER,
that if the Transfer is not made pursuant to a Public
Sale or a Sale of the Company,
then the transferor of such Security shall first
deliver to Holdings a written
agreement of the proposed
transferee,
including
the transferee in an Exempt
Transfer that is not pursuant to a Public Sale or a
Sale of the
Company,
to become a
Stockholder
and to be bound by the terms of
this Agreement,
including,
without limitation, the requirements of Section 2.3
(unless
such
proposed
transferee
is
already a
Stockholder).
All
Employee
Securities
will
continue
to be
Employee
Securities
in
the
hands
of
any
transferee
(other
than the
Company,
Holdings or any
transferee
in a Public
Sale). All AIP Securities will continue to be AIP Securities in the
hands of any
transferee
(other
than the
Company,
Holdings or any
transferee
in a Public
Sale). All BNS Securities will continue to be BNS Securities in the
hands of any
transferee
(other than the Company,
the
Employees,
AIP or a transferee
in a
Public Sale). All New Stockholder Securities will continue to be
New Stockholder
Securities
in the hands of a
transferee
(other
than the
Company,
BNS,
the
Employees, AIP or any transferee in a Public Sale).
4.4.
TRANSFERS
IN VIOLATION
OF
AGREEMENT.
Any Transfer or
attempted
Transfer of any
Securities
in
violation
of any
provision of this
Agreement
shall be void,
and
Holdings
shall not record such
Transfer on its
books or treat any purported
transferee of such Securities as the owner of such
Securities for any purpose.
ARTICLE V
TAKE-ALONG RIGHTS; SALE OF THE COMPANY
5.1.
TAKE-ALONG RIGHTS.
(a) SALE OF THE COMPANY.
Each of Holdings or BNS , subject to
the approval of a Required
Majority of the Board,
(such party the
"INITIATING
PARTY")
may elect to
consummate,
or to cause the
Company
to
consummate,
a
transaction constituting a Sale of the Company. If an Initiating
Party wishes to
exercise its rights under this Section 5.1(a), the Initiating Party
shall notify
the Company and the
Stockholders in writing of such election.
If an Initiating
Party
delivers
such
notice,
the
Stockholders
will
consent to and raise no
objections to the proposed
transaction,
and the
Stockholders
and the Company
will take all other
actions
reasonably
necessary
or
desirable
to cause the
consummation of such Sale of the Company on the terms proposed by
the Initiating
Party.
Without limiting the foregoing,
(i) if the proposed Sale of the Company
is
structured
as
a
sale
of
assets
or
a
merger
or
consolidation,
the
Stockholders,
will vote or cause to be voted all
Securities
that they hold or
with
respect to which such
Stockholder
has the power to direct the voting and
which are entitled to vote on such
transaction in favor of such transaction and
will waive any appraisal rights which they may have in connection
therewith, and
(ii) if the proposed
Sale of the Company is structured as or involves a sale or
redemption of
Securities,
the
Stockholders
will agree to sell their PRO RATA
share of
Securities
being
sold in such Sale of the
Company
on the terms and
conditions
approved by the Initiating Party, and such Stockholders will
execute
any merger or sale agreement approved by the Initiating Party in
connection with
such Sale of the Company.
(b) TAKE-ALONG CONDITIONS. The obligations of the Stockholders
with respect to the Sale of the Company are subject to the
satisfaction
of the
following conditions,
(i) upon the consummation of the Sale of the Company, all
of the holders of a particular
class or series of Securities
shall receive the
same form and amount of consideration
per share or amount of Securities,
or if
any holders of a particular class or series of Securities are given
an option as
to the form and amount of
consideration
to be
received,
all
holders of such
class or
series
will be given the same
option
and (ii) all
holders
of then
currently
exercisable
rights
to
acquire
a
particular
class or
series
of
Securities will be given an opportunity to either (A) exercise such
rights prior
to the
consummation
of the Sale of the Company and participate in such sale as
holders of such Securities
6
or (B) upon the consummation of the Sale of the Company, receive in
exchange for
such rights
consideration equal to the amount determined by multiplying (1) the
same amount of consideration
per share or amount of Securities
received by the
holders of such type and class of Securities in connection
with the Sale of the
Company
less the
exercise
price per share or amount of such rights to acquire
such
Securities
by (2) the number of shares or aggregate
amount of Securities
represented by such rights.
(c) PURCHASER
REPRESENTATIVE.
If an Initiating
Party enters
into any
negotiation or transaction for which Rule 506 under the Securities
Act
(or any
similar
rule then in effect)
may be
available
with
respect to such
negotiation
or
transaction
(including
a
merger,
consolidation
or
other
reorganization),
each Stockholder that is not an "accredited
investor" (within
the meaning of Rule 501(a) of the
Securities
Act) will,
at the request of the
Initiating Party, appoint a purchaser representative (as such term
is defined in
Rule 501 under the
Securities
Act) approved by the Initiating
Party,
and the
Initiating Party will pay the fees of such purchaser
representative. If any such
Stockholder
declines to appoint the
purchaser
representative
approved by the
Initiating
Party,
such
Stockholder
will
appoint
another
purchaser
representative,
and such
Stockholder
will be responsible
for the fees of the
purchaser representative so appointed.
(d)
EXPENSES.
Each
Stockholder
will bear such Person's PRO
RATA share (based upon the relative amount of Securities sold) of
the reasonable
costs of any sale of
Securities
pursuant to a Sale of the Company (but only if
such Sale of the Company is actually
consummated)
to the extent such costs are
incurred for the benefit of all
Stockholders
and are not otherwise paid by the
Initiating
Party, the Company or the acquiring
party.
Costs incurred by or on
behalf of a
Stockholder
for such
Person's sole benefit will not be considered
costs of the transaction
hereunder.
In the event that any transaction
that an
Initiating
Party elects to
consummate or cause to be
consummated
pursuant to
this Section 5.1 is not consummated
for any reason,
the Company will reimburse
Holdings for all actual and reasonable
expenses paid or incurred by Holdings in
connection therewith.
ARTICLE VI
LIQUIDITY EVENT
6.1. EXCLUSIVE
NEGOTIATION
PERIOD. At any time subsequent to
the Trigger Date, AIP may deliver notice to BNS that AIP has
elected to exercise
its rights under this Article VI. Promptly after delivery of such
notice to BNS,
BNS and AIP will
commence
good
faith
negotiations
and use their
reasonable
efforts to enter into a definitive agreement providing for BNS's
purchase of all
Securities held by AIP (a "DEFINITIVE
AGREEMENT").
During the period beginning
on the Trigger Date and ending ninety (90) days (or such greater
number of days
as to which
AIP may
consent
in its sole and
absolute
discretion)
after the
Trigger Date (such period, the "EXCLUSIVE
NEGOTIATION
PERIOD"),
AIP shall not
solicit,
initiate, discuss or encourage the submission of any proposal or
offer
from any Person
relating the
acquisition
of all or any part of the Securities
held by AIP.
6.2 ENGAGEMENT OF GOLDMAN, SACHS;
COOPERATION.
If by the end
of the Exclusive
Negotiation Period, BNS and AIP do not enter into a Definitive
Agreement, then AIP shall have the right, on behalf of Holdings and
the Company,
to engage Goldman,
Sachs & Co. to conduct an auction for a Sale of the Company.
7
Such engagement shall include an undertaking by Goldman,
Sachs & Co. to provide
a fairness
opinion to the Board with respect to such Sale of the
Company,
and
shall otherwise be on customary terms and conditions,
including with respect to
the fees payable to Goldman,
Sachs & Co. upon
consummation of such Sale of the
Company and the delivery of such
fairness
opinion.
Holdings,
the Company and
each
of the
Stockholders
shall,
to
the
extent
Goldman,
Sachs
& Co.
may
reasonably
request in connection with such auction for the Sale of the
Company,
use its
commercially
reasonable
efforts
to,
and shall
cause the
Company's
Subsidiaries
and the
Company's
and
its
Subsidiaries'
respective
officers,
employees and advisors to use their respective
commercially
reasonable efforts
to:
(A)
cooperate
in the
preparation
of any
offering
memorandum,
private
placement memorandum, prospectus, confidential information
memorandum or similar
documents,
(B) make senior management of the Company
reasonably
available for
meetings
and
due
diligence
sessions,
and
(C)
cooperate
with
prospective
purchasers and their respective advisors in performing their due
diligence.
6.3 SALE OF THE COMPANY.
The Board,
acting in its reasonable
discretion and in consultation with Goldman,
Sachs & Co., shall determine which
prospective
purchaser
participating in the auction for the Sale of the Company
provided in Section 6.2 has offered the largest cash consideration
for such Sale
of the Company;
PROVIDED;
HOWEVER;
that if an Affiliate of Steel Partners II,
L.P.,
is among the
group of
prospective
purchasers
whose
offers
are being
considered, AIP shall have the right, acting in its reasonable
discretion and in
consultation
with Goldman,
Sachs & Co. to make such
determination.
Upon such
determination, and provided that Goldman, Sachs & Co. has
indicated that it will
provide
a
fairness
opinion
to the
Board
with
respect
to such Sale of the
Company,
the
Stockholders
will
consent
to and
raise no
objections
to the
proposed
transaction,
and the Stockholders and the Company will take all other
actions reasonably necessary or desirable to cause the consummation
of such Sale
of the Company on the terms proposed by such prospective
purchaser.
The rights
and
obligations
of the
Stockholders
with
respect
to a Sale of the
Company
pursuant to this Section 6.3 shall be the same as the rights and
obligations of
the Stockholders with respect to a Sale of the Company pursuant to
Section 5.1.
ARTICLE VII
PUTS AND CALLS
7.1.
APPLICATION
OF THIS ARTICLE.
This Article VII shall be
applicable to any
Stockholder
who, as of the date of acquisition of any shares
of Common Stock, is an employee of Holdings or any of its
Subsidiaries.
7.2. PUT OPTION.
(a) If the
Stockholder's
employment
with
Holdings
and its
Subsidiaries is terminated by Holdings or its Subsidiaries without
Cause, by the
Stockholder for Good Reason, or by reason of Stockholder's
Disability,
death or
Retirement , in each case prior to the earlier of (i) a Public
Offering or (ii)
a Sale of the
Company,
then
each
of the
Stockholder
and the
Stockholder's
Permitted
Transferees
(hereinafter
sometimes
collectively referred to as the
"STOCKHOLDER
GROUP") shall have the right, subject to the provisions of Section
7.5 hereof,
for 180 days following the date of termination due to death and for
8
90 days
for any
other
termination
described
in
this
sentence,
to sell to
Holdings,
and Holdings shall be required to purchase (subject to the
provisions
of Section 7.5
hereof),
on one
occasion
from each member of the
Stockholder
Group,
all (but not less than all) of the
shares of Common
Stock then held by
such
member,
at a price
per
share
equal to the
applicable
purchase
price
determined pursuant to Section 7.3(c).
(b) If the Stockholder Group desires to exercise its option to
require Holdings to repurchase shares pursuant to Section 7.2(a),
the members of
the
Stockholder
Group shall send one written notice to Holdings
setting forth
the
intention to sell all of their
shares of Common Stock
pursuant to Section
7.2(a)
within the
applicable
period
described
therein,
which
notice shall
include the
signature of each member of the
Stockholder
Group (other than the
Stockholder
if deceased or
incompetent,
in which case the
signature
of such
Stockholder's authorized
representative).
Subject to the provisions of Section
7.5, the closing of the
purchase
shall take place at the
principal
office of
Holdings
on a date
specified
by Holdings no later than the 60th day after the
giving of such notice.
(c) In the event of a purchase by Holdings pursuant to Section
7.2(a),
the purchase
price shall be a price per share equal to the Fair Market
Value (measured as of the Termination Date).
7.3. CALL OPTIONS.
(a) If the
Stockholder's
employment
with Holdings or any of
its
Subsidiaries
terminates
for any of the reasons set forth in clauses
(i),
(ii),
(iii) or (iv) below prior to a Sale of the Company,
Holdings
shall have
the right and option to purchase,
for a period of 90 days following the date of
such
termination
of
employment
of the
Stockholder,
and each
member of the
Stockholder
Group
shall be
required
to sell to
Holdings,
any or all of the
shares of Common
Stock then held by such
member of the
Stockholder
Group (it
being
understood
that
Holdings
may elect to
repurchase
only the portion of
Common Stock subject to repurchase
hereunder
which may be repurchased for less
than Fair Market Value,
if any),
at a price per share equal to the
applicable
purchase price determined pursuant to Section 7.3(c):
(i)
if
the
Stockholder's
active
employment
with
Holdings or any of its
Subsidiaries is terminated due to the Disability,
death
or Retirement of the Stockholder;
(ii)
if the
Stockholder's
active
employment
with
Holdings
or any of its
Subsidiaries
is
terminated
by
Holdings
or any such
Subsidiary without Cause or by the Stockholder for Good Reason or
if Holdings or
any such Subsidiary elects not to renew Stockholder's active
employment upon the
expiration in accordance with its terms of a written
employment
agreement with
Stockholder;
(iii) if the
Stockholder's
active
employment
with
Holdings or any of its
Subsidiaries
is
terminated
by the
Stockholder
after
December 31, 2011 for any reason not set forth in Sections
7.3(a)(i) or (a)(ii);
or
(iv)
if the
Stockholder's
active
employment
with
Holdings or any of its
Subsidiaries is terminated (A) by Holdings or any of its
Subsidiaries
for Cause or (B) by the
Stockholder
for any other reason not set
forth in Sections 7.3(a)(i) or (a)(ii) on or prior to December 31,
2011.
9
(b) If Holdings desires to exercise its option to purchase any
shares
pursuant to this Section
7.3,
Holdings
shall,
not later than 90 days
after the date of termination of Stockholder's
employment,
send written notice
to each member of the
Stockholder
Group of its
intention to purchase
shares,
specifying the number of shares to be purchased (the "CALL
NOTICE").
Subject to
the
provisions of Section 7.5, the closing of the purchase
shall take place at
the principal
office of Holdings on a date
specified by Holdings no later than
the 60th day after the giving of the Call Notice.
(c) In the event of a purchase by Holdings pursuant to
