Common use of Call Option Clause in Contracts

Call Option. (i) Other than as set forth in the second sentence of Section 5(b)(ix), upon the termination of the Executive’s employment with the Company for any reason (or no reason), Parent shall have the right and option (the “Call Option”), but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, from the Executive, on and after the Initial Call Date any or all of the Restricted Shares. The purchase price (the “Call Price”) of the Restricted Shares subject to purchase under this provision (the “Called Shares”) shall be as follows: (1) In the event of a 5(a)(i) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share, the lower of the Fair Market Value of such share on the date of the applicable “Call Notice” (as defined below) or the Initial Value of such share, and (B) as to each Called Share which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, the Fair Market Value of such share on the date of the applicable Call Notice. (2) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, or which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination, the Fair Market Value of such share on the date of the applicable Call Notice (3) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share (other than such a share which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination), the lower of the Fair Market Value of such share on the date of the applicable Call Notice or the Initial Value of such share.

Call Option. (i) Other than as set forth in the second sentence of Section 5(b)(ix), upon the termination of the Executive’s employment with the Company for For any reason (or no reason), Parent shall have the right and option (the “Call Option”), but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, from the Executive, on and after the Initial Call Date any or all of the Restricted Shares. The purchase price (the “Call Price”) of the Restricted Shares subject to purchase under this provision (the “Called Shares”) shall be as follows: (1) In the event of a 5(a)(i) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share, the lower of the Fair Market Value of such share on the date of the applicable “Call Notice” (as defined below) or the Initial Value of such share, and (B) as to each Called Share which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, the Fair Market Value of such share on the date of the applicable Call Notice. (2) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, or which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination, the Fair Market Value of such share on the date of the applicable Call Notice (3) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Performance- Based Restricted Stock which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share (other than such a share which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination), the lower of the Fair Market Value of such share on the date of the applicable Call Notice or the Initial Value of such share.

Call Option. (i) Other than as set forth in the second sentence of Section 5(b)(ix5(b)(x), upon the termination of the Executive’s employment with the Company for any reason (or no reason), Parent shall have the right and option (the “Call Option”), but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, from the Executive, on and after the Initial Call Date any or all of the Restricted Shares. The purchase price (the “Call Price”) of the Restricted Shares subject to purchase under this provision (the “Called Shares”) shall be as follows: (1) In the event of a 5(a)(i) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to the Initial Call Date of such shareShares, the lower of the Fair Market Value of such share the Called Shares on the date of the applicable “Call Notice” (as defined below) or the Initial Value of such sharethe Called Shares, and (B) as to each Called Share which is a Vested Restricted Share immediately prior to the Initial Call Date of such shareShares, the Fair Market Value of such share the Called Shares on the date of the applicable Call Notice. (2) In the event of a 5(a)(ii) Termination, as to each Called Share shares of Service-Based Restricted Stock and Performance-Based Restricted Stock which is a are Vested Restricted Share Shares immediately prior to the Initial Call Date of such sharetermination, or which becomes a become Vested Restricted Share Shares upon such termination of employment solely because such termination is a CIC Termination, the Fair Market Value of such share on the date of the applicable Call NoticeNotice of such shares which are Called Shares. (3) In the event of a 5(a)(ii) Termination (other than a CIC Termination), as to each Called Share shares of Service-Based Restricted Stock which are Unvested Restricted Shares immediately prior to such termination, and as to shares of Performance-Based Restricted Stock as to which is an Unvested the Service Condition has not been met at the time of such termination, the lower of the Fair Market Value on the date of the Call Notice of such shares which are Called Shares or the Initial Value of such Called Shares. (4) In the event of a 5(a)(ii) Termination where a 2X Restricted Share immediately Stock Liquidity Event, but not a 3X Restricted Stock Liquidity Event, has occurred prior to such termination, (A) if the Initial Call Date Fair Market Value of the Investor Equity at the time of such share termination is at least the 3X Investor Equity Value and the Applicable EBITDA Target is attained, then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met, but the Service Condition had been met (other than either prior to such a share which becomes a Vested Restricted Share upon termination of employment solely because or at such termination if such termination is a CIC Termination), the Call Price shall be the Fair Market Value of such shares which are Called Shares on the date of the Call Notice, and (B) if the Fair Market Value of the Investor Equity at the time of such termination is less than the 3X Investor Equity Value or the Applicable EBITDA Target is not attained then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met, but the Service Condition had been met (either prior to such termination or at such termination if such termination is a CIC Termination), the Call Price shall be the lower of the Fair Market Value of such share on the date of the applicable Call Notice of such shares which are Called Shares or the Initial Value of such shareCalled Shares. (5) In the event of a 5(a)(ii) Termination where neither a 2X Restricted Stock Liquidity Event nor a 3X Restricted Stock Liquidity Event has occurred prior to such termination, (A) if the Fair Market Value of the Investor Equity at the time of such termination is at least the 3X Investor Equity Value and the Applicable EBITDA Target is attained then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met, but the Service Condition has been met (either prior to such termination or at such termination if such termination is a CIC Termination), the Call Price shall be the Fair Market Value on the date of the Call Notice of such shares which are Called Shares, (B) if the Fair Market Value of the Investor Equity at the time of such termination is at least the 2X Investor Equity Value, but less than the 3X Investor Equity Value, and the Applicable EBITDA Target is attained then, as to one-half of the shares of Performance-Based Restricted Stock for which the Performance Condition had not been met, but the Service Condition had been met (either prior to such termination or at such termination if such termination is a CIC Termination), the Call Price shall be the Fair Market Value on the date of the Call Notice of such shares which are Called Shares, and as to the other one-half of the shares of Performance-Based Restricted Stock for which the Performance Condition had not been met, but the Service Condition had been met (either prior to such termination or at such termination if such termination is a CIC Termination), the Call Price shall be the lower of the Fair Market Value on the date of the Call Notice of such shares which are Called Shares or the Initial Value of such Called Shares and (C) if the Fair Market Value of the Investor Equity at the time of such termination is less than the 2X Investor Equity Value or the Applicable EBITDA Target is not attained then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met, but the Service Condition had been met (either prior to such termination or at such termination if such termination is a CIC Termination), the Call Price shall be the lower of the Fair Market Value on the date of the Call Notice of such shares which are Called Shares or the Initial Value of such Called Shares. (ii) For purposes of Section 5(b)(i)(4) and (5), the “Applicable EBITDA Target” shall have been deemed attained in connection with a 5(a)(ii) Termination if, for the fiscal year (A) ending immediately prior to such termination, if such termination occurs during the first nine months of a fiscal year or (B) in which such termination occurs, if such termination occurs during the last three months of a fiscal year, the Parent Group has attained or exceeded 85% of the target earnings before interest, taxes, depreciation and amortization (“EBITDA”); provided that EBITDA shall be calculated in same manner as calculated in the Parent Group’s bank plan dated November 2003 (attached hereto as Exhibit 1), including but not limited to the exclusion of non-recurring and extraordinary expenses. For this purpose, the target EBITDA for the fiscal years in 2004 through 2011 shall be $360 million, $450 million, $477 million, $506 million, $543 million, $579 million and $618 million and $655 million, respectively. The Company and the Executive acknowledge that, as of tile date hereof, the Company’s fiscal year ends on November 30, and agree that if such fiscal year changes the targets set forth in the preceding sentence shall be adjusted in a mutually acceptable manner intended to make them neither more difficult nor less difficult to attain.

Call Option. (i) Other than as set forth in the second sentence of Section 5(b)(ix), upon the termination of the Executive’s employment with the Company for any reason (or no reason), Parent shall have the right and option (the “Call Option”), but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, from the Executive, on and after the Initial Call Date any or all of the Restricted Shares. , The purchase price (the “Call Price”) of the Restricted Shares subject to purchase under this provision (the “Called Shares”) shall be as follows: (1) In the event of a 5(a)(i) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share, the lower of the Fair Market Value of such share on the date of the applicable “Call Notice” (as Notice”(us defined below) or the Initial Value of such share, and (B) as to each Called Share which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, the Fair Market Value of such share on the date of the applicable Call Notice. (2) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Performance- Based Restricted Stock which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, or which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination, the Fair Market Value of such share on the date of the applicable Call Notice (3) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share (other than such a share which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination), the lower of the Fair Market Value of such share on the date of the applicable Call Notice or the Initial Value of such share.

Call Option. (ia) Other than Subject to Section 6.8 hereof, if any Executive's employment with the Company or any of its Subsidiaries is terminated for any reason, the Company shall have the right to purchase, which right shall be exercised as set forth in Section 6.2(b) hereof within 90 days following (i) the second sentence date of Section 5(b)(ix), upon such termination (the termination "Termination Date") or (ii) in the event that the Executive or any of the Executive’s employment with the Company for any reason (or no reason), Parent shall 's heirs have the right and option to exercise a Put Option pursuant to Section 6.3(a) or (b) hereof, respectively, the “expiration of the Put Period (as defined in Section 6.3(c) hereof) (in either case, the "Call Option”Period"), and each of such Executive and the members of such Executive's Group shall be required to offer to the Company upon the Company's exercise of such right, all but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, from the Executive, on and after the Initial Call Date any or less than all of the Restricted Shares. The Common Stock then held by such Executive and each member of such Executive's Group, at a price per share equal to the applicable purchase price determined pursuant to Section 6.4 hereof. (b) The Company shall exercise a Call Option by sending written notice (the “"Exercise Notice"; the date of which being herein referred to as the "Notice Date") prior to the end of the Call Price”Period in accordance with Section 9.4 hereof to the Executive whose employment has been terminated, which Exercise Notice shall also state a date not later than 60 days following the Notice Date for the closing (a "Call Option Closing") of the Restricted Shares subject purchase of shares of Common Stock pursuant to purchase under this provision (such Call Option; provided, however, that in the “Called Shares”) shall be as follows: (1) In the event case of a 5(a)(i) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share, the lower of the Fair Market Value of such share on the date of the applicable “Call Notice” (as defined below) or the Initial Value of such share, and (B) as to each Called Share which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, the Fair Market Value of such share on the date of the applicable Call Notice. (2) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, or which becomes a Vested Restricted Share upon termination of employment solely because due to the Executive's death, such termination is a CIC Termination, Exercise Notice shall to the Fair Market Value extent practicable also be sent to each member of such share on Executive's Group. Any Call OptionClosing shall take place at the date principal executive offices of the applicable Call Notice (3) In the event of a 5(a)(ii) TerminationCompany at 1000 University Avenue, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share (other than such a share which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination)Xxxxxxxxx, the lower of the Fair Market Value of such share on the date of the applicable Call Notice or the Initial Value of such shareXxx Xxxx 00000.

Call Option. (i) Other than as set forth in the second sentence of Section 5(b)(ix), upon the termination of If the Executive’s employment with the Company is terminated for any reason (or no reason), Parent shall have the right and option (the “Call Option”), but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, from the Executive, on and after the Initial Call Date Executive any or all of the Vested Restricted Shares. The purchase price (the “Call Price”) of the Vested Restricted Shares subject to purchase under this provision (the “Called Shares”) shall be as follows: (1) In the event of a 5(a)(itermination of employment described in Section 5(a) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to the Initial Call Date of such shareabove, the lower of the Fair Market Value of such share the Called Shares on the date of the applicable “Call Notice” (as defined below) or the Initial Value of such share, and (B) as to each the Called Share which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, the Fair Market Value of such share on the date of the applicable Call NoticeShares. (2) In the event of a 5(a)(iitermination described in Section 5(b) Terminationabove, as to each Called Share shares of Service-Based Restricted Stock and Performance-Based Restricted Stock which is a are Vested Restricted Share Stock immediately prior to the Initial Call Date of such share, or which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination(i.e., without taking account of the vesting acceleration described in Section 5(b)), and as to shares of Performance-Based Restricted Stock for which the Performance Condition, but not the Service Condition, has been met prior to such termination, the Fair Market Value of such share on the date of the applicable Call NoticeNotice of such shares which are Called Shares. (3) In the event of a 5(a)(iitermination described in Section 5(b) Terminationabove, as to each Called Share shares of Service-Based Restricted Stock and Performance-Based which are not Vested Restricted Stock which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share (other than such a share which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination)termination, the lower of the Fair Market Value of such share on the date of the applicable Call Notice of such shares which are Called Shares or the Initial Value of such shareCalled Shares. (4) In the event of a termination described in Section 5(b) above where a 2X Restricted Stock Liquidity Event, but not a 3X Restricted Stock Liquidity Event, has occurred prior to such termination, (A) if the Fair Market Value of the Investor Equity at the time of such termination is at least the 3X Investor Equity Value then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met prior to such termination, the Call Price shall be the Fair Market Value of such shares which are Called Shares on the date of the Call Notice, and (B) if the Fair Market Value of the Investor Equity at the time of such termination is less than the 3X Investor Equity Value then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met prior to such termination, the Call Price shall be the lower of the Fair Market Value on the date of the Call Notice of such shares which are Called Shares or the Initial Value of such Called Shares. (5) In the event of a termination described in Section 5(b) above where neither a 2X Restricted Stock Liquidity Event nor a 3X Restricted Stock Liquidity Event has occurred prior to such termination, (A) if the Fair Market Value of the Investor Equity at the time of such termination is at least the 3X Investor Equity Value then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met prior to such termination, the Call Price shall be the Fair Market Value on the date of the Call Notice of such shares which are Called Shares, (B) if the Fair Market Value of the Investor Equity at the time of such termination is at least the 2X Investor Equity Value, but less than the 3X Investor Equity Value, then, as to one-half of the shares of Performance-Based Restricted Stock for which the Performance Condition had not been met prior to such termination, the Call Price shall be the Fair Market Value on the date of the Call Notice of such shares which are Called Shares, and as to the other one-half of the shares of Performance-Based Restricted Stock for which the Performance Condition had not been met prior to such termination, the Call Price shall be the lower of the Fair Market Value on the date of the Call Notice of such shares which are Called Shares or the Initial Value of such Called Shares and (C) if the Fair Market Value of the Investor Equity at the time of such termination is less than the 2X Investor Equity Value then, as to shares of Performance-Based Restricted Stock for which the Performance Condition had not been met prior to such termination, the Call Price shall be the lower of the Fair Market Value on the date of the Call Notice of such shares which are Called Shares or the Initial Value of such Called Shares. (ii) For purposes of Section 5(c)(i), the termination of the Executive’s employment at the end of the initial Employment Period (i.e., on the day prior to the fourth anniversary of the Effective Date) in connection with either the Company or the Executive giving the other a notice of non-renewal, as described in Section 1 of the Employment Agreement, shall be deemed to be a termination described in Section 5(b) above. (iii) Parent or the Call Assignee, as applicable, may exercise the Call Option by delivering or mailing to the Executive (or to his estate, if applicable), in accordance with Section 15 of this Agreement, written notice of exercise (a “Call Notice”) at any time following the termination of the Executive’s employment with the Company. The Call Notice shall specify the date thereof, the number of Called Shares and the Call Price. (iv) Within ten (10) days after his receipt of the Call Notice, the Executive (or his estate) shall tender to Parent or the Call Assignee, as applicable, at its principal office the certificate or certificates representing the Called Shares, duly endorsed in blank by the Executive (or his estate) or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such shares to Parent or the Call Assignee, as applicable, (the date on which the Company receive such certificate or certificates, the “Call Date”). Upon its receipt of such shares, Parent or the Call Assignee, as applicable, shall pay to the Executive the aggregate Call Price therefore, in cash. (v) Parent or the Call Assignee, as applicable, will be entitled to receive customary representations and warranties from the Executive regarding the sale of the Called Shares pursuant to the exercise of the Call Option as may reasonably requested by Parent or the Call Assignee, as applicable, including but not limited to the representation that the Executive has good and marketable title to the Called Shares to be transferred free and clear of all liens, claims and other encumbrances. (vi) If Parent or the Call Assignee, as applicable, delivers a Call Notice, then from and after the time of delivery of the Call Notice the Executive shall no longer have any rights as a holder of the Called Shares subject thereto (other than the right to receive payment of the Call Price as described above), and such Called Shares shall be deemed purchased in accordance with the applicable provisions hereof and Parent or the Call Assignee, as applicable, shall be deemed to be the owner and holder of such Called Shares. (vii) Any Vested Restricted Shares as to which the Call Option is not exercised will remain subject to all terms and conditions of this Agreement, including the continuation of Parent’s or the Call Assignee’s, as applicable, right to exercise the Call Option. (viii) The Section 5(c) is in addition to, and not in lieu of, any rights and obligations of the Executive and Parent in respect of the Restricted Shares contained in the “Stockholders Agreement” (as defined below). Notwithstanding the above, this Section 5(c) shall become ineffective on and following an IPO or any other event which causes the Class A Common Stock, or other securities for which all or substantially all of the Class A Common Stock may have been exchanged, to be or become listed for trading on or over an established securities market or established trading system.

Call Option. (i) Other than as set forth in the second sentence of Section 5(b)(ix4(b)(vii), upon and following (A) a termination of the Executive’s employment by the Company for Cause or (B) the termination of the Executive’s employment with for any reason (other than the Company Executive’s death) within one year following the date of this Agreement for any reason (or no reason), Parent the Company shall have the right and option (the “Call Option”), but not the obligation, to purchase, or to cause any member of the Parent Group designated by Parent (the “Call Assignee”) to purchase, purchase from the Executive, on and after the Initial Call Date Executive (or his estate or permitted transferees) any or all of the Restricted Sharesshares of Company Common Stock or Company Preferred Stock, as the case may be, owned by the Executive; provided, that if the Executive is entitled to exercise his Put Right in accordance with Section 4(c) and he does exercise his Put Right, the provisions of Section 4(c) shall govern the repurchase of Shares by the Company. The purchase price (the “Call Price”) of the Restricted Shares Company Common Stock or Company Preferred Stock, as the case may be, subject to purchase under this provision (the “Called Shares”) shall be as follows: (1x) In in the event case of a 5(a)(i) Termination, (A) as to each Called Share which is an Unvested Restricted Share immediately prior to a termination of the Initial Call Date Executive’s employment by the Company for Cause or (B) the termination of such sharethe Executive’s employment for any reason (other than the Executive’s death) within one year following the date of this Agreement, the lower of the Company Common Initial Value or the Company Preferred Initial Value, as the case may be, of such Called Shares or the Fair Market Value of such share Called Shares on the date of the applicable “Call Notice” (as defined below). (ii) The Company may exercise the Call Option by delivering or mailing to the Executive (or to his estate, if applicable), in accordance with Section 15 of this Agreement, written notice of exercise (a “Call Notice”). The Call Notice shall specify the date thereof, the number of Called Shares and the Call Price. (iii) Within ten (10) days after his receipt of the Call Notice, the Executive (or his estate) shall tender to the Company, at its principal office the certificate or certificates representing the Called Shares, duly endorsed in blank by the Executive (or his estate) or with duly endorsed stock powers attached thereto, all in form suitable for the Initial Value transfer of such shareshares to the Company. Upon its receipt of such shares, the Company shall pay to the Executive the aggregate Call Price therefor, in cash or by wire transfer of immediately available funds. (iv) The Company will be entitled to receive customary representations and warranties from the Executive (or his estate) regarding the sale of the Called Shares pursuant to the exercise of the Call Option as may reasonably requested by the Company, including but not limited to the representation that the Executive has good and marketable title to the Called Shares to be transferred free and clear of all liens, claims and other encumbrances. (v) If the Company delivers a Call Notice, then from and after the time of delivery of the Call Notice, the Executive shall no longer have any rights as a holder of the Called Shares subject thereto (other than the right to receive payment of the Call Price as described above), and such Called Shares shall be deemed purchased in accordance with the applicable provisions hereof and the Company shall be deemed to be the owner and holder of such Called Shares. (Bvi) Any Company Common Shares as to which the Call Option is not exercised will remain subject to all terms and conditions of this Agreement, including the continuation of the Company’s right to exercise the Call Option. (vii) This Section 4(b) is in addition to, and not in lieu of, any rights and obligations of the Executive and the Company in respect of the Shares contained in the “Stockholders Agreement” (as defined below). Notwithstanding the above, this Section 4(b) shall be ineffective as to each Called Company Common Share on and following an IPO or any other event which is a Vested Restricted Share immediately prior to causes the Initial Call Date of such shareCompany Common Stock, the Fair Market Value of such share on the date or other securities for which all or substantially all of the applicable Call NoticeCompany Common Stock may have been exchanged, to be or become listed for trading on or over an established securities market or established trading system. (2) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is a Vested Restricted Share immediately prior to the Initial Call Date of such share, or which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination, the Fair Market Value of such share on the date of the applicable Call Notice (3) In the event of a 5(a)(ii) Termination, as to each Called Share of Service-Based Restricted Stock and Performance-Based Restricted Stock which is an Unvested Restricted Share immediately prior to the Initial Call Date of such share (other than such a share which becomes a Vested Restricted Share upon termination of employment solely because such termination is a CIC Termination), the lower of the Fair Market Value of such share on the date of the applicable Call Notice or the Initial Value of such share.