Call Options. (a) If the Executive's employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy Holdings, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c): (i) if the Executive's active employment with the Company and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive; (ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason; (iii) if the Executive's active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i) or Section 7.2(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services. (b) If Dairy Holdings desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 8, the closing of the purchase shall take place at the principal office of Dairy Holdings on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to Units to Dairy Holdings, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive. (c) In the event of a purchase by Dairy Holdings pursuant to Section 7.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)): (i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost; (ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and (iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 16 contracts
Samples: Management Unit Subscription Agreement (Mg Waldbaum Co), Management Unit Subscription Agreement (Mg Waldbaum Co), Management Unit Subscription Agreement (Mg Waldbaum Co)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c):
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i) or Section 7.2(a)(ii); provided that Dairy HoldingsInvestors' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 8, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of of
Section 8.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 8 contracts
Samples: Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co), Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co), Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co)
Call Options. (a) If the Executive's ’s employment with the Company or any of and its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages ’s initial Public Offering (in Competitive Activity (as defined in Section 9.1 any event excluding termination of this Agreement), for any Units issued 181 days or more employment by Retirement prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such UnitsCompany’s initial Public Offering), Dairy Holdings the Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (or if the Executive’s employment with the Company and its subsidiaries is terminated prior to six month anniversary of the Grant Date, such 90 day period shall begin on the six month anniversary of the Grant Date), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.4(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of and its subsidiaries for without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive’s active employment with the Company and its subsidiaries is terminated by the Executive for any other reason not set forth in Section 7.2(a)(i5.4(a)(i) or Section 7.2(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a5.4(a)(ii) shall not be available in after the event second anniversary of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his servicesGrant Date.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.25.4, Dairy Holdings the Company shall, not later than 90 days after the expiration Termination Date (or in the event that the Executive’s employment is terminated within the six month period following the Grant Date, then 90 days after the six month anniversary of the applicable period described for such purchase in Section 7.2(aGrant Date), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased and the purchase price thereof (the "“Call Notice"”). Subject to the provisions of Section 86, the closing of the purchase of the Units shall take place at the principal office of Dairy Holdings the Company on a date specified by the Company no later of than the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to Units to Dairy Holdings, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the ExecutiveNotice.
(c) In Subject to Section 5.2(b), in the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.4(a), the purchase price for any Vested Class B Unit or Vested Class C Unit shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser later of (x) the Fair Market Value (measured as of the date of the Call Notice) Termination Date and (y) the Cost six month anniversary of the Grant Date) of such Vested Class B Unit (or Vested Class C Unit, as applicable; provided that in any case the "Unvested Unit Purchase Price")Board shall have the right, and (ii) if the number of such Units exceeds the Unvested Percentage of such classin its sole discretion, to increase the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); andset forth above.
(iiid) Notwithstanding the foregoing, in no event shall the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall Company have the right or option to revoke purchase any Units from a member of the exercise of its option Executive Group pursuant to this Section 7.2 for all or any portion of 5.4 after the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Company’s initial Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was usedOffering.
Appears in 4 contracts
Samples: Management Unit Subscription Agreement (Radiation Therapy Services Holdings, Inc.), Support and Voting Agreement (Vestar Capital Partners v L P), Support and Voting Agreement (Vestar Capital Partners v L P)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c):
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i) or Section 7.2(a)(ii); provided that Dairy HoldingsInvestors' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 8, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day tenday period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 4 contracts
Samples: Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co), Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co), Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 7.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group after taking into account Units put to Investors under Section 5.1 of this agreement (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.2(c):
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.2(a)(i) or Section 7.2(a)(ii5.2(a)(ii); provided that Dairy HoldingsInvestors' rights under this Section 7.2(a5.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings desires Investors desire to exercise one of its options to purchase Units pursuant to this Section 7.25.2, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a5.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th 60th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a5.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 7.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 7.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.2(a)(i) or Section 5.2(a)(ii), (x) if such termination occurs prior to the date 18 months from the date of this Agreement, the purchase price for each Unit shall be the greater of (1) the Fair Market Value (measured as of the date of the Call Notice) and (2) the Cost of such Unit, and (y) if such termination occurs after the date which is 18 months from the date of this Agreement, the purchase price for each Unit shall be the Fair Market Value of such Unit (measured as of the date of the Call Notice);
(iii) in the case of a termination of employment described in Section 7.2(a)(ii), or Section 7.2(a)(iii)(B5.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the total number of Units of such Class held by the Executive Group multiplied by the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result product of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iiiiv) in the case of a termination of employment described in Section 7.2(a)(iii)(A5.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 5.2 to the contrary, in the event that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 5.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.25.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.25.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 4 contracts
Samples: Unit Subscription Agreement (Michael Foods Inc/New), Unit Subscription Agreement (Michael Foods Inc/New), Unit Subscription Agreement (Michael Foods Inc/New)
Call Options. (a) If the Executive's ’s employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the CompanyChange in Control, or if the Executive engages in Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's ’s termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's ’s Permitted Transferees (hereinafter referred to as the "“Executive Group"”) shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c4.1(c):
(i) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;; or
(iii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i4.1(a)(i) or Section 7.2(a)(ii4.1(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.24.1, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a4.1(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "“Call Notice"”). Subject to the provisions of Section 85, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th 60th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.15.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a4.1(a), the purchase price shall be be:
(in each case after taking account A) with respect to that number of any prior purchases pursuant Class F Units equal to Section 7.2(a)the Unvested Percentage multiplied by the total number of Class F Units issued hereunder (the “Unvested Number”):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), or a termination of employment described in Section 4.1(a)(iii), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 6.2 of this Agreement)) and (B) Cost;; or
(ii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(i)4.1(c)(A)(i) above, Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), a price per unit equal to Cost.
(B) with respect to all Class F Units other than the Unvested Number of Class F Units:
(i) if the number Executive engages in any Competitive Activity, or a termination of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or employment described in Section 4.1(a)(iii), a price per unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and Cost; or
(ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(iii)(A4.1(c)(A)(i), a price per unit equal to the lesser greater of (A) Fair Market Value (measured as of the date of the Call NoticeActivity Date) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 4.1 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 2 contracts
Samples: Class F Unit Subscription Agreement (Michael Foods Inc/New), Class F Unit Subscription Agreement (Michael Foods Inc/New)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c):
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i) or Section 7.2(a)(ii); provided that Dairy HoldingsInvestors' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 8, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of of
Section 8.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day tenday period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 2 contracts
Samples: Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co), Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c):
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i) or Section 7.2(a)(ii); provided that Dairy HoldingsInvestors' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 8, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 2 contracts
Samples: Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co), Management Stock Purchase and Unit Subscription Agreement (Mg Waldbaum Co)
Call Options. (a) If the Executive's employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in "Competitive Activity Activity" (as defined in Section 9.1 6.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Company and/or Vestar shall have the right and option to purchase, from time to time after such termination of employment, for a period of 90 days following (x) in the case of unvested Units, the date of Executive's termination of employment and (y) in the case of vested Units, the date that is six (6) months after the date on which the Units first vest, and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company and/or Vestar, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company and/or Vestar may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c4.2(c):
(i) if the Executive's active employment with the Company and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i4.2(a)(i) or Section 7.2(a)(ii4.2(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.24.2, Dairy Holdings the Company shall, not later than 90 days after (x) in the expiration case of unvested Units, the applicable period described for date of Executive's termination of employment and (y) in the case of vested Units, the date that is six (6) months after the vesting date of such purchase in Section 7.2(a)Units, send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call NoticeCALL NOTICE"). If for any reason the Company does not elect to purchase all of the Units held by the Executive Group then subject to repurchase, Vestar shall be entitled to purchase the Units then subject to repurchase that the Company has not elected to purchase (the "AVAILABLE Units"). As soon as practicable after the Company has determined that there will be Available Units, but in any event within 45 days after the date that is six (6) months after the relevant vesting date, the Company shall give written notice (the "OPTION NOTICE") to Vestar setting forth the number of Available Units and the purchase price for the Available Units. Vestar may elect to purchase any or all of the Available Units by giving written notice to the Company within 30 days after the Option Notice has been given by the Company. As soon as practicable, and in any event within fifteen days after the expiration of the 30-day period set forth above, the Company shall notify each member of the Executive Group as to the number of Units being purchased from such holder by Vestar (the "SUPPLEMENTAL CALL NOTICE"). At the time the Company delivers the Supplemental Call Notice to the members of the Executive Group, the Company shall also deliver written notice to Vestar setting forth the number and class of Units Vestar is entitled to purchase, the aggregate purchase prices and the time and place of the closing of the transaction. If the units of any class to be repurchased by the Company and Vestar are to be repurchased at more than one price, the units of varying price shall be allocated among the Company and Vestar pro rata according to the aggregate number of units to be purchased by each of them. Subject to the provisions of Section 85, the closing of the purchase shall take place at the principal office of Dairy Holdings the Company on a date specified by the Company no later of than the 30th 60th day after the giving of the later of the Call Notice and or the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to Units to Dairy Holdings, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the ExecutiveSupplemental Call Notice.
(c) In the event of a purchase by Dairy Holdings the Company and/or Vestar pursuant to Section 7.2(a4.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a4.2(a)):
(i) with respect to a purchase of Class A Units or Class B Units, if the Executive engages in any "Competitive Activity Activity" (as defined in Section 9.1 6.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the "Activity Date Date" (as defined in Section 9.2 6.2 of this Agreement)) and (B) Cost;
(ii) with respect to a purchase of Class A Units or Class B Units, in the case of a termination of employment described in Section 7.2(a)(i4.2(a)(i) or Section 4.2(a)(ii), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if with respect to the number of Units of any class to be units being purchased from which are the Executive Group by Dairy Holdings is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser product of (x) the total number of units being purchased and (y) the Applicable Percentage (measured as of the Termination Date), a price per unit equal to Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"purchase date), and (ii) if the number of such Units exceeds the Unvested Applicable Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of Termination Date) is less than 100%) the Call Notice); andpurchase price with respect to the remaining units being sold shall be a price per unit equal to Cost;
(iii) with respect to a purchase of Class A Units or Class B Units, in the case of a termination of employment described in Section 7.2(a)(iii)(A4.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call NoticeTermination Date) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject ;
(iv) with respect to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall have the right to revoke the exercise purchase of its option pursuant to this Section 7.2 for all Class A Units or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contraryClass B Units, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant case of a termination of employment described in Section 4.2(a)(iii)(B), with respect to the terms number of this Section 7.2 and within six months of units being purchased which are the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess product of (x) the net proceeds which the Executive would have received in such Sale total number of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less units being purchased and (y) the amount which Applicable Percentage (measured as of the Executive received from the purchase of such Units by Dairy HoldingsTermination Date), shall be paid by certified or cashier's check or wire transfer of funds a price per unit equal to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value (measured as of the repurchased purchase date), and (if the Applicable Percentage (measured as of the Termination Date) is less than 100%) the purchase price with respect to the remaining units being sold shall be a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Termination Date) and (B) Cost;
(v) with respect to a purchase of Class C Units or Class D Units, if the Arbiter was usedExecutive engages in a Competitive Activity or in the case of a termination of employment described in Section 4.2(a)(iii)(A) or a termination of employment prior to the third anniversary of the date hereof described in Section 4.2(a)(iii)(B), a price per unit equal to Cost; and
(vi) with respect to a purchase of Class C Units or Class D Units, in the case of a termination of employment described in Section 4.2(a)(i) or Section 4.2(a)(ii) or a termination of employment on or after the third anniversary of the date hereof described in Section 4.2(a)(iii)(B), a price per unit equal to Fair Market Value (measured as of the Termination Date without giving effect to any performance targets set forth in the operating agreement of the Company which may have been achieved after the Termination Date). PROVIDED that in any case the Board shall have the right, in its sole discretion, to increase any purchase price set forth above.
Appears in 1 contract
Call Options. (a) If the Executive's ’s employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity any activity prohibited under Section 10 of Executive’s Employment Agreement, dated as of , 2008, by and among the Executive, Holdings and RTS, during the time that such activity is prohibited (as defined in Section 9.1 of this Agreement“Prohibited Activity”), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (provided that if the Executive’s employment with the Company and its subsidiaries is terminated prior to the six month anniversary of the Closing Date, such 90 day period shall begin on the six month anniversary of the Closing Date) (such period, the “Call Option Exercise Period”), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such the Rollover Units then held by such member of the Executive Group (it being understood that if the Rollover Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Rollover Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.1(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company and its subsidiaries without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.1(a)(i) or Section 7.2(a)(ii5.1(a)(ii) (other than Executive’s Retirement); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.25.1, Dairy Holdings the Company shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a)Call Option Exercise Period, send written notice to each member of the Executive Group of its intention to purchase all or a portion of the Rollover Units, specifying the number of Rollover Units to be purchased and the Fair Market Value of the Rollover Units as of the date of such notice (the "“Call Notice"”). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings the Company on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16, the Executive shall deliver to Dairy Holdings the Company duly executed instruments transferring title to Units to Dairy Holdingsthe Company, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.1(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.1(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement)Prohibited Activity, a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;Date; and
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.1(a)(i), Section 7.2(a)(ii5.1(a)(ii), or Section 7.2(a)(iii)(B5.1(a)(iii), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or a price per Unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice.
(d) and If (yi) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the Company exercises its option to purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of pursuant to this Section 5.1 upon a termination of employment described in Section 7.2(a)(iii)(A5.1(a)(i) or Section 5.1(a)(ii), (ii) within six months following the date of closing of such purchase, a Sale of the Company occurs resulting in the unitholders receiving cash proceeds from such sale, and (iii) the cash proceeds per Unit that would have been received by the Executive with respect to any Units that were repurchased had the Executive continued to hold such Units through the closing of such Sale of the Company would have been greater than the purchase price per unit determined pursuant to Section 5.1(c)(ii) above, then in connection with the consummation of such Sale of the Company, the Executive shall be entitled to receive an amount in cash equal to the lesser product of (Ax) Fair Market Value the number of Rollover Units purchased by the Company pursuant to this Section 5.1 and (measured as y) the amount by which the cash proceeds per each such Unit that would have been so received in connection with such Sale of the date of Company exceeds the Call Noticepurchase price paid by the Company pursuant to Section 5.1(c)(ii) and above.
(Be) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 1015% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings the Company shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.1 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings the Company is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 1015% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Support and Voting Agreement (Vestar Capital Partners v L P)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 7.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group after taking into account Units put to Investors under Section 5.1 of this agreement (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.2(c):
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.2(a)(i) or Section 7.2(a)(ii5.2(a)(ii); provided that Dairy HoldingsInvestors' rights under this Section 7.2(a5.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings desires Investors desire to exercise one of its options to purchase Units pursuant to this Section 7.25.2, Dairy Holdings subject to the terms of Section 5.2(c), Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a5.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th 60th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a5.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 7.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 7.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.2(a)(i) or Section 5.2(a)(ii), (x) if such termination occurs prior to the date 18 months from the date of this Agreement, the purchase price for each Unit shall be the greater of (1) the Fair Market Value (measured as of the date of the Call Notice) and (2) the Cost of such Unit, and (y) if such termination occurs after the date which is 18 months from the date of this Agreement, the purchase price for each Unit shall be the Fair Market Value of such Unit (measured as of the date of the Call Notice);
(iii) in the case of a termination of employment described in Section 7.2(a)(ii), or Section 7.2(a)(iii)(B5.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the total number of Units of such Class held by the Executive Group multiplied by the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result product of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iiiiv) in the case of a termination of employment described in Section 7.2(a)(iii)(A5.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 5.2 to the contrary, in the event that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 5.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.25.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.25.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used. Notwithstanding anything contained herein to the contrary, upon the Retirement of the Executive, the Company shall not deliver a Call Notice until on or after the Executive's 65th birthday. Any Call Notice delivered prior to the Executive's 65th birthday shall be null and void and of no force or effect.
Appears in 1 contract
Samples: Unit Subscription Agreement (Michael Foods Inc/New)
Call Options. (a) If the Executive's employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in "Competitive Activity Activity" (as defined in Section 9.1 of this ----------- Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings Investors may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c):): --------------
(i) if the Executive's active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section ------- 7.2(a)(i) or Section 7.2(a)(ii); --------- ------------------ provided that Dairy HoldingsInvestors' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company Investors or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company Investors or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings Investors shall, not later than the ----------- expiration of the applicable period described for such purchase in Section 7.2(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 8, the closing of the ------------ --------- purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings Investors duly ----------- executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section ------- 7.2(a), the purchase price shall be (in each case after taking account of any ------ prior purchases pursuant to Section 7.2(a)):): --------------
(i) if the Executive engages in any "Competitive Activity Activity" (as defined in Section 9.1 of this Agreement), a price per unit equal to the ----------- lesser of (A) Fair Market Value (measured as of the "Activity Date Date" (as defined in Section 9.2 of this Agreement)) and (B) Cost;; -----------
(ii) in the case of a termination of employment described in Section ------- 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the --------- ----------------- --------------------- number of Units of any class Class to be purchased from the Executive Group by Dairy Holdings Investors is less than or equal to the Unvested Percentage of such classClass, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), ---------------------------- and (ii) if the number of such Units exceeds the Unvested Percentage of such classClass, the purchase price for each Unit shall be (A) for a number of Units of such class Class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class Class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class Class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A------- 7.2
(a) (iii)(A), a price per unit equal to the lesser of (A) Fair ------------- Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event ----------- that Dairy Holdings Investors purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings Investors to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings Investors the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings Investors under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy HoldingsInvestors, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, that Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, Units the Arbiter was used.
Appears in 1 contract
Samples: Management Stock Purchase and Unit Subscription Agreement (M Foods Investors LLC)
Call Options. (a) If the Executive's ’s employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the CompanyChange in Control, or if the Executive engages in Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's ’s termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's ’s Permitted Transferees (hereinafter referred to as the "“Executive Group"”) shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c4.1(c):
(i) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;; or
(iii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i4.1(a)(i) or Section 7.2(a)(ii4.1(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.24.1, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a4.1(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "“Call Notice"”). Subject to the provisions of Section 85, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th 60th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.15.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a4.1(a), the purchase price shall be be:
(in each case after taking account A) with respect to that number of any prior purchases pursuant Class D Units equal to Section 7.2(a)the Unvested Percentage multiplied by the total number of Class D Units issued hereunder (the “Unvested Number”):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), or a termination of employment described in Section 4.1(a)(iii), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 6.2 of this Agreement)) and (B) Cost;; or
(ii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(i)4.1(c)(A)(i) above, Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), a price per unit equal to Cost.
(B) with respect to all Class D Units other than the Unvested Number of Class D Units:
(i) if the number Executive engages in any Competitive Activity, or a termination of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or employment described in Section 4.1(a)(iii), a price per unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and Cost; or
(ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(iii)(A4.1(c)(A)(i), a price per unit equal to the lesser greater of (A) Fair Market Value (measured as of the date of the Call NoticeActivity Date) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 4.1 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Senior Management Unit Subscription Agreement (Michael Foods Inc/New)
Call Options. (a) If the Executive's ’s employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity any activity prohibited under Section 9 of Executive’s Employment Agreement, dated as of , 2008, by and among the Executive, Holdings and RTS, during the time that such activity is prohibited (as defined in Section 9.1 of this Agreement“Prohibited Activity”), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (provided that if the Executive’s employment with the Company and its subsidiaries is terminated prior to the six month anniversary of the Closing Date, such 90 day period shall begin on the six month anniversary of the Closing Date) (such period, the “Call Option Exercise Period”), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such the Rollover Units then held by such member of the Executive Group (it being understood that if the Rollover Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Rollover Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.1(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company and its subsidiaries without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.1(a)(i) or Section 7.2(a)(ii5.1(a)(ii) (other than Executive’s Retirement); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.25.1, Dairy Holdings the Company shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a)Call Option Exercise Period, send written notice to each member of the Executive Group of its intention to purchase all or a portion of the Rollover Units, specifying the number of Rollover Units to be purchased and the Fair Market Value of the Rollover Units as of the date of such notice (the "“Call Notice"”). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings the Company on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16, the Executive shall deliver to Dairy Holdings the Company duly executed instruments transferring title to Units to Dairy Holdingsthe Company, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.1(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.1(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement)Prohibited Activity, a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;Date; and
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.1(a)(i), Section 7.2(a)(ii5.1(a)(ii), or Section 7.2(a)(iii)(B5.1(a)(iii), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or a price per Unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice.
(d) and If (yi) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the Company exercises its option to purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of pursuant to this Section 5.1 upon a termination of employment described in Section 7.2(a)(iii)(A5.1(a)(i) or Section 5.1(a)(ii), (ii) within six months following the date of closing of such purchase, a Sale of the Company occurs resulting in the unitholders receiving cash proceeds from such sale, and (iii) the cash proceeds per Unit that would have been received by the Executive with respect to any Units that were repurchased had the Executive continued to hold such Units through the closing of such Sale of the Company would have been greater than the purchase price per unit determined pursuant to Section 5.1(c)(ii) above, then in connection with the consummation of such Sale of the Company, the Executive shall be entitled to receive an amount in cash equal to the lesser product of (Ax) Fair Market Value the number of Rollover Units purchased by the Company pursuant to this Section 5.1 and (measured as y) the amount by which the cash proceeds per each such Unit that would have been so received in connection with such Sale of the date of Company exceeds the Call Noticepurchase price paid by the Company pursuant to Section 5.1(c)(ii) and above.
(Be) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 1015% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings the Company shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.1 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings the Company is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 1015% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Support and Voting Agreement (Vestar Capital Partners v L P)
Call Options. (a) If At any time and from time to time on or after the Executive's employment with the Company or any of its subsidiaries terminates for any fifth anniversary of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more Closing Date and prior to the date sixth anniversary of Executive's termination of employment or engagement in Competitive Activitythe Closing Date, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Triarc shall have the right and option (but not the obligation) to purchase, at the Standard Price, (i) up to the greater of (x) 50% of the Membership Interests held by the Sachs Affiliated Parties at such time and (y) 50% of the Executive Membership Interests held by the Sachs Affiliated Parties on the Closing Date and (ii) up to the Executive's Permitted Transferees greater of (hereinafter referred x) 50% of the Membership Interests held by the Roberts Affiliated Parties at such time and (y) 50% of the Membership Xxxxxxsts held by the Roberts Affiliated Parties on the Closing Date.
(b) At any time and from time to as time on or after the "Executive Group"sixth anniversary of the Closing Date, Triarc shall have the right (but not the obligation) shall be required to sell purchase, at the Standard Price, (i) up to Dairy Holdings, 100% of the Membership Interests held by any or all of such Units then the Sachs Affiliated Parties and (ii) up to 100% of the Membership Interests held by such member any or all of the Executive Group Roberts Affiliated Parties.
(it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal c) Notwithstandixx xxxxhing to the applicable purchase price determined pursuant to Section 7.2(c):contrary set forth in paragraphs (a) and (b) above:
(i) if a Triarc Key Person Event occurs, then Triarc thereafter shall have the Executive's active employment with right (but not the Company and its subsidiaries is terminated due obligation) to purchase, exercisable within 90 days after the Disabilityoccurrence of such event, death or Retirement at the Guaranteed Price, all (but not less than all) of the ExecutiveMembership Interests held by SCM as of the Closing Date, and at the Standard Price, all (but not less than all) of the other Membership Interests held by the Sachs Affiliated Parties;
(ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company and its subsidiaries is terminated (A) Sachs ceases to be employed by the Company or any of its subsidiaries Subsidiaries due to his death or Disability, (B) a Triarc Change in Control occurs or (C) Sachs requests the delivery of a fairness opinion in accordance with Section 7.7, then Triarc thereafter shall have the right (but not the obligation) to purchase, exercisable within 90 days after the occurrence of such event, at the Standard Price, all (but not less than all) of the Membership Interests held by the Sachs Affiliated Parties;
(iii) if (A) Sachs is terminated by the Company or any of its Subsidiaries for Cause Cause, (B) Sachs ceases to be employed by the Company or any of its Subsidiaries (other than as a result of a termination by the Company or any of its Subsidiaries without Cause, resignation for Good Reason or due to his death or Disability) or (C) a Material Sachs Operating Agreement Breach Event occurs, then Triarc thereafter shall have the right (but not the obligation) to purchase, exercisable within one year after the occurrence of such event, at the Standard Price, all (but not less than all) of the Membership Interests held by the Sachs Affiliated Parties;
(iv) if an Authorized Sachs Director fails to approve any Extraordinary Matter submitted to him or her for authorization under Section 7.2(d), then Triarc thereafter shall have the right (but not the obligation) to purchase, exercisable within 20 Business Days after the occurrence of such event, at the Standard Price, all (but not less than all) of the Membership Interests held by the Sachs Affiliated Parties;
(v) if (A) Roberts ceases to be employed by the Company or any of its Sxxxxxxxries due to his death or Disability or (B) a Triarc Change in Control occurs, then Triarc thereafter shall have the right (but not the obligation) to purchase, exercisable within 90 days after the occurrence of such event, at the Standard Price, all (but not less than all) of the Membership Interests held by the Executive for any other reason not set forth in Section 7.2(a)(iRoberts Affiliated Parties; and
(xx) or Section 7.2(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(aif (A) shall not be available in the event of the termination of Executive's employment Roberts is terminated by the Company or any of its subsidiaries without Cause or by Executive for Good ReasonSubsidiarxxx xxx Cause, in either case following a sale (B) Roberts ceases to be employed by the Company or any of its subsidiaries Sxxxxxxxries (other than as a result of substantially a termination by the Company or any of its Subsidiaries without Cause, resignation for Good Reason or due to his death or Disability) or (C) a Material Roberts Operating Agreement Breach Event occurs, then Triarc xxxxxxfter shall have the right (but not the obligation) to purchase, exercisable within one year after the occurrence of such event, at the Standard Price, all (but not less than all) of the line of business in which Executive primarily performs his servicesMembership Interests held by the Roberts Affiliated Parties.
(bd) If Dairy Holdings desires Any Call Option shall be exercisable upon delivery of a written notice (the "CALL OPTION NOTICE") by Triarc to exercise one the applicable Sachs Affiliated Parties and/or Roberts Affiliated Parties (the "CALL OPTION SELLERS") and the Companx. Xxx Call Option Notice once delivered shall be irrevocable. The Call Option Notice shall include the amount of Membership Interests of the applicable Sachs Affiliated Party or Roberts Affiliated Party that Triarc has exercised its right to purchxxx xxxsuant to this Section 9.10. The date when the Call Option Price is determined by the Investment Banking Firm selected in accordance with the Selection Procedures shall be the "CALL OPTION PRICE DETERMINATION DATE".
(e) Prior to the Call Option Price Determination Date, subject to any limitations or restrictions contained in any financing arrangements of the Company or any of its options Subsidiaries or applicable law (including the Act), the Company shall distribute to each Call Option Seller an amount equal to the sum of (i) the amount as of such date of the unrecovered Capital Contributions, if any, made by such Call Option Seller subsequent to the Closing Date in respect of its Membership Interests being called and (ii) the Available Net Cash and Permitted Investments that such Call Option Seller would have received pursuant to a distribution made under Section 5.1(c)(i) for the then current fiscal year had such amounts been determined and such distribution been made as of the end of the most recently completed fiscal quarter.
(f) The purchase of the Membership Interests that Triarc has exercised its right to purchase Units pursuant to this Section 7.2, Dairy Holdings shall, not 9.10 shall occur no later than the expiration 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the Call Option Price Determination Date; PROVIDED, that in connection with any Call Option exercised pursuant to clauses (ii)(A) or (iv) of Section 9.10(c), if the applicable period described for Call Option Price is less than $50 million, such purchase in Section 7.2(a), send written notice to each member of shall occur no later than the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased 90th day (the "Call Notice"). Subject to the provisions of Section 8or if such day is not a Business Day, the closing of first Business Day thereafter) after the Call Option Price Determination Date and, if the applicable Call Option Price is $50 million or greater, such purchase shall take place at occur no later than the principal office of Dairy Holdings 270th day (or if such day is not a Business Day, the first Business Day thereafter) after the Call Option Price Determination Date, in which case interest shall accrue on the later of the 30th day after the giving unpaid portion of the Call Notice and Option Price at the rate per annum of LIBOR plus 450 basis points from the Call Option Price Determination Date to, but excluding, the date paid. Delivery of certificates or other instruments evidencing the Membership Interests that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to Units to Dairy Holdings, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings pursuant to Section 7.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall have the Triarc has exercised its right to revoke the exercise of its option purchase pursuant to this Section 7.2 9.10, duly endorsed for transfer and free and clear of all or any portion Liens, shall be made on such date against payment in cash of the Units elected applicable Call Option Price. At the closing, all the parties to be repurchased by it by delivering notice the transaction shall execute such additional documents and take such further actions as are otherwise reasonably necessary or appropriate to effect the purchase and sale of such revocation Membership Interests. The fees, costs and expenses of the Investment Banking Firm selected in writing accordance with the Selection Procedures to determine the applicable Call Option Price shall be paid by the Company.
(g) If, within one year after the exercise of any Call Option (other than any Call Option under clause (iii), (iv) or (vi) of Section 9.10(c)), a Triarc Affiliated Party enters into a definitive agreement with respect to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of Transfer to a Unit was finally determined to be an amount at least 10% greater Third Party (other than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value a Company Sale) of Membership Interests of the Units exceeds same Class of Interests that were subject to such Call Option in a transaction not covered by Section 9.10(h) pursuant to which the per share Call Option Sellers would have received a greater purchase price paid by Dairy Holdings for the Membership Interests subject to Executive under this Section 7.2such Call Option than the applicable Call Option Price, then Triarc shall pay such Call Option Sellers, simultaneously with the Executive shall be entitled to receive from Dairy Holdings the benefit consummation of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive Transfer, an amount equal to such greater amount that such Call Option Sellers would have received in such Sale Transfer less the applicable Call Option Price actually paid to such Call Option Sellers, payable at Triarc's option in cash or in the form of the Company or Public Offering from the sale consideration that Triarc is entitled to receive in such transaction Transfer (such non-cash consideration to be valued at the same value applicable in such Transfer).
(h) If, within two years after the exercise of all Units repurchased by Dairy Holdings any Call Option (other than any Call Option under this clause (iii), (iv) or (vi) of Section 7.29.10(c)), less (y) the amount a definitive agreement with respect to a Company Sale to a Third Party is entered into pursuant to which the Executive Call Option Sellers would have received from a greater purchase price for the purchase of Membership Interests subject to such Units by Dairy HoldingsCall Option than the applicable Call Option Price, then Triarc shall be paid by certified or cashier's check or wire transfer of funds to Executive upon pay such Call Option Sellers, simultaneously with the consummation of such transaction; provided thatCompany Sale, Executive shall an amount equal to such greater amount that such Call Option Sellers would have no rights under this paragraph ifreceived in such Company Sale less the applicable Call Option Price actually paid to such Call Option Sellers, payable at Triarc's option in connection with cash or in the determination form of Fair Market Value of consideration that Triarc is entitled to receive in such Company Sale (such non-cash consideration to be valued at the repurchased Units, the Arbiter was usedsame value applicable in such Company Sale).
Appears in 1 contract
Call Options. (a) If Upon the Executive's employment with the Company or any occurrence of its subsidiaries terminates for any of the reasons following events (“Call Events”): (i) the voluntary termination by Xxxxxxx of his employment with NASDI Holdings (including Xxxxxxx’x election not to renew the term of his employment under the Employment Agreement) or the termination for Cause by NASDI Holdings of Xxxxxxx’x employment with NASDI Holdings, (ii) the termination of Xxxxxxx’x employment with NASDI Holdings for any reason other than as set forth in clauses the preceding clause (i), (iiiii) a Change of Control of GLD Corporation, or (iiiiv) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activityreason after December 31, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date2010, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings GLD Corporation shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees purchase all (hereinafter referred to as the "Executive Group"but not less than all) shall be required to sell to Dairy Holdings, any or all of such Units then held by such member of the Executive Group Interest owned by Xxxxxxx (it being understood that if Units of or any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower pricePermitted Transferee thereof), at a price per unit equal to all in the manner, for the applicable purchase price determined pursuant to Section 7.2(c):
(i) if the Executive's active employment with the Company and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i) or Section 7.2(a)(ii8.5(c); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings desires The option of GLD Corporation under Section 8.5(a) shall be exercisable by service of written notices upon Xxxxxxx (or any Permitted Transferee thereof) and each other Member (i) with respect to exercise one of its options to purchase Units an option exercised pursuant to this Section 7.2, Dairy Holdings shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a8.5(a)(i) or (ii), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased within thirty (the "Call Notice"). Subject to the provisions of Section 8, the closing of the purchase shall take place at the principal office of Dairy Holdings on the later of the 30th day after the giving of the Call Notice and the date that is 10 business 30) days after the final determination termination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to Units to Dairy Xxxxxxx’x employment with NASDI Holdings, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds (ii) with respect to an account designated by option exercised pursuant to Section 8.5(a)(iii), within thirty (30) days after the Executivedate the Change of Control is consummated, or (iii) with respect to an option exercised pursuant to Section 8.5(a)(iv), any time after December 31, 2010.
(c) In The purchase price for an Interest described in Sections 8.5(a)(ii) - 8.5(a)(iv) shall be determined as of the event first date of a purchase by Dairy Holdings pursuant to Section 7.2(a), exercise of the purchase price options giving rise to such purchase and shall be (in each case after taking account of any prior purchases pursuant equal to Section 7.2(a)):
(i) if the Executive engages in sum of (A)
(1) the average annual EBITDA for the prior two years of the Company (or any Competitive Activity predecessor thereto), multiplied by (2) four (4), minus (B) the total Indebtedness of the Company, minus (C) the Class A Liquidation Preference Amount (less the aggregate amount distributed as defined provided in Section 9.1 of this Agreement5.1(b)(i)), a multiplied by (ii) the Class B Percentage Interest being sold. The purchase price per unit for an Interest described in Section 8.5(a)(i) shall be determined as of the first date of exercise of the purchase options giving rise to such purchase shall be equal to the lesser of (Ai) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
$1,500,000 or (ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or an amount equal to (A) the Unvested Percentage sum of such class, the purchase price for each Unit shall be the lesser of (1) (x) the Fair Market Value (measured as average annual EBITDA for the prior two years of the date of the Call Notice) and Company (or any predecessor thereto), multiplied by (y) the Cost of such Unit four (the "Unvested Unit Purchase Price"4), and minus (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (yz) the total number Indebtedness of Units of such class held the Company, (2) minus the Class A Liquidation Preference Amount (less the aggregate amount distributed as provided in Section 5.1(b)(i)), multiplied by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class Class B Percentage Interest being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was usedsold.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Great Lakes Dredge & Dock CORP)
Call Options. (a) If the Executive's ’s employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the CompanyChange in Control, or if the Executive engages in Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), for any Units issued 181 days or more prior to the date of Executive's ’s termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's ’s Permitted Transferees (hereinafter referred to as the "“Executive Group"”) shall be required to sell to Dairy HoldingsInvestors, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c4.1(c):
(i) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;; or
(iii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i4.1(a)(i) or Section 7.2(a)(ii4.1(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Units pursuant to this Section 7.24.1, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a4.1(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Units to be purchased (the "“Call Notice"”). Subject to the provisions of Section 85, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th 60th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.15.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a4.1(a), the purchase price shall be be:
(in each case after taking account A) with respect to that number of any prior purchases pursuant Class G Units equal to Section 7.2(a)the Unvested Percentage multiplied by the total number of Class G Units issued hereunder (the “Unvested Number”):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), or a termination of employment described in Section 4.1(a)(iii), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 6.2 of this Agreement)) and (B) Cost;; or
(ii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(i)4.1(c)(A)(i) above, Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), a price per unit equal to Cost.
(B) with respect to all Class G Units other than the Unvested Number of Class G Units:
(i) if the number Executive engages in any Competitive Activity, or a termination of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or employment described in Section 4.1(a)(iii), a price per unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and Cost; or
(ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(iii)(A4.1(c)(A)(i), a price per unit equal to the lesser greater of (A) Fair Market Value (measured as of the date of the Call NoticeActivity Date) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings Investors shall have the right to revoke the exercise of its option pursuant to this Section 7.2 4.1 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings Investors is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Class G Unit Subscription Agreement (Michael Foods Inc/New)
Call Options. (a) If the Executive's ’s employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity any activity prohibited under Section 10 of Executive’s Employment Agreement, dated as of , 2008, by and among the Executive, Holdings and RTS, during the time that such activity is prohibited (as defined in Section 9.1 of this Agreement“Prohibited Activity”), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (provided that if the Executive’s employment with the Company and its subsidiaries is terminated prior to the six month anniversary of the Closing Date, such 90 day period shall begin on the six month anniversary of the Closing Date) (such period, the “Call Option Exercise Period”), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such the Rollover Units then held by such member of the Executive Group (it being understood that if the Rollover Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Rollover Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.2(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company and its subsidiaries without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.2(a)(i) or Section 7.2(a)(ii5.2(a)(ii) (other than Executive’s Retirement); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.25.2, Dairy Holdings the Company shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a)Call Option Exercise Period, send written notice to each member of the Executive Group of its intention to purchase all or a portion of the Rollover Units, specifying the number of Rollover Units to be purchased and the Fair Market Value of the Rollover Units as of the date of such notice (the "“Call Notice"”). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings the Company on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16, the Executive shall deliver to Dairy Holdings the Company duly executed instruments transferring title to Units to Dairy Holdingsthe Company, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement)Prohibited Activity, a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;Date; and
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.2(a)(i), Section 7.2(a)(ii5.2(a)(ii), or Section 7.2(a)(iii)(B5.2(a)(iii), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or a price per Unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice.
(d) and If (yi) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the Company exercises its option to purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of pursuant to this Section 5.2 upon a termination of employment described in Section 7.2(a)(iii)(A5.2(a)(i) or Section 5.2(a)(ii), (ii) within six months following the date of closing of such purchase, a Sale of the Company occurs resulting in the unitholders receiving cash proceeds from such sale, and (iii) the cash proceeds per Unit that would have been received by the Executive with respect to any Units that were repurchased had the Executive continued to hold such Units through the closing of such Sale of the Company would have been greater than the purchase price per unit determined pursuant to Section 5.2(c)(ii) above, then in connection with the consummation of such Sale of the Company, the Executive shall be entitled to receive an amount in cash equal to the lesser product of (Ax) Fair Market Value the number of Rollover Units purchased by the Company pursuant to this Section 5.2 and (measured as y) the amount by which the cash proceeds per each such Unit that would have been so received in connection with such Sale of the date of Company exceeds the Call Noticepurchase price paid by the Company pursuant to Section 5.2(c)(ii) and above.
(Be) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 1015% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings the Company shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings the Company is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 1015% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Support and Voting Agreement (Vestar Capital Partners v L P)
Call Options. (a) If the Executive's ’s employment with the Company or any of and its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages ’s initial Public Offering (in Competitive Activity (as defined in Section 9.1 any event excluding termination of this Agreement), for any Units issued 181 days or more employment by Retirement prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such UnitsCompany’s initial Public Offering), Dairy Holdings the Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (or if the Executive’s employment with the Company and its subsidiaries is terminated prior to six month anniversary of the Grant Date, such 90 day period shall begin on the six month anniversary of the Grant Date), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.4(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of and its subsidiaries for without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive’s active employment with the Company and its subsidiaries is terminated by the Executive for any other reason not set forth in Section 7.2(a)(i5.4(a)(i) or Section 7.2(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a5.4(a)(ii) shall not be available in after the event second anniversary of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his servicesGrant Date.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.25.4, Dairy Holdings the Company shall, not later than 90 days after the expiration Termination Date (or in the event that the Executive’s employment is terminated within the six month period following the Grant Date, then 90 days after the six month anniversary of the applicable period described for such purchase in Section 7.2(aGrant Date), send written notice to each member of the Executive Group of its intention to purchase UnitsXxxxx, specifying the number of Units to be purchased and the purchase price thereof (the "“Call Notice"”). Subject to the provisions of Section 86, the closing of the purchase of the Units shall take place at the principal office of Dairy Holdings the Company on a date specified by the Company no later of than the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.1, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to Units to Dairy Holdings, against payment of the appropriate purchase price by cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the ExecutiveNotice.
(c) In Subject to Section 5.2(b), in the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.4(a), the purchase price for any Vested Class B Unit or Vested Class C Unit shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement), a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser later of (x) the Fair Market Value (measured as of the date of the Call Notice) Termination Date and (y) the Cost six month anniversary of the Grant Date) of such Vested Class B Unit (or Vested Class C Unit, as applicable; provided that in any case the "Unvested Unit Purchase Price")Board shall have the right, and (ii) if the number of such Units exceeds the Unvested Percentage of such classin its sole discretion, to increase the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); andset forth above.
(iiid) Notwithstanding the foregoing, in no event shall the case of a termination of employment described in Section 7.2(a)(iii)(A), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall Company have the right or option to revoke purchase any Units from a member of the exercise of its option Executive Group pursuant to this Section 7.2 for all or any portion of 5.4 after the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Company’s initial Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was usedOffering.
Appears in 1 contract
Samples: Support and Voting Agreement (Vestar Capital Partners v L P)
Call Options. (a) If the Executive's employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity (as defined in Section 9.1 of this Agreement)Activity, for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 90 days after such date (or in the case of Units issued 180 days or less prior to such date the Termination Date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings shall have the right and option to purchase, and the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") shall be required to sell to Dairy Holdings, any or all of such Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.1(c):
(i) if the Executive's active employment with the Company and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's active employment with the Company and its subsidiaries is terminated by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executive's active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.1(a)(i) or Section 7.2(a)(ii5.1(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings desires to exercise one of its options to purchase Units pursuant to this Section 7.25.1, Dairy Holdings shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a5.1(a), send written notice to each Executive and, to the extent Holdings has been provided with notice information pursuant to Section 8.10 with respect to any member of the Executive Group Group, to each such member of the Executive Group, of its intention to purchase Units, specifying the number of Units to be purchased (the "Call Notice"). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16, the Executive shall deliver to Dairy Holdings duly executed instruments transferring title to the applicable Units to Dairy Holdings, against payment of the appropriate purchase price by (i) in the case of a termination of employment described in Section 5.1(a)(i) or Section 5.1(a)(ii), cashier's or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive, and (ii) in the case of a termination of employment described in Section 5.1(a)(iii)(A) or (B) or if the Executive engages in any Competitive Activity, delivery of Subordinated Notes as described in Section 6.
(c) In the event of a purchase by Dairy Holdings pursuant to Section 7.2(a5.1(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.1(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement)Activity, a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)Date) and (B) Cost;
(ii) in the case of a termination of employment described in Section 7.2(a)(i), Section 7.2(a)(ii), 5.1(a)(i) or Section 7.2(a)(iii)(B5.1(a)(ii), (i1) if for any Unvested Unit, the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or equal to the Unvested Percentage Cost of such classUnit, and (2) for any other Unit, the purchase price Fair Market Value of such Unit (measured as of the date of the Call Notice);
(iii) in the case of a termination of employment described in Section 5.1(a)(iii)(B), (1) for each Unit shall be any Unvested Unit, the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price")Unit, and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A2) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchasedany other Unit, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iiiiv) in the case of a termination of employment described in Section 7.2(a)(iii)(A5.1(a)(iii)(A), a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the date of the Call Notice) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Management Unit Subscription Agreement (Pro Fac Cooperative Inc)
Call Options. (a) If the Executive's ’s employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity any activity prohibited under Section 6 of Executive’s Physician Employment Agreement, dated as of , 2008, by and between the Executive and 21st Century Oncology, Inc., during the time that such activity is prohibited (as defined in Section 9.1 of this Agreement“Prohibited Activity”), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (provided that if the Executive’s employment with the Company and its subsidiaries is terminated prior to the six month anniversary of the Closing Date, such 90 day period shall begin on the six month anniversary of the Closing Date) (such period, the “Call Option Exercise Period”), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such the Rollover Units then held by such member of the Executive Group (it being understood that if the Rollover Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Rollover Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.1(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company and its subsidiaries without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.1(a)(i) or Section 7.2(a)(ii5.1(a)(ii) (other than Executive’s Retirement); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.25.1, Dairy Holdings the Company shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a)Call Option Exercise Period, send written notice to each member of the Executive Group of its intention to purchase all or a portion of the Rollover Units, specifying the number of Rollover Units to be purchased and the Fair Market Value of the Rollover Units as of the date of such notice (the "“Call Notice"”). Subject to the provisions of Section 86, the closing of the purchase shall take place at the principal office of Dairy Holdings the Company on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16, the Executive shall deliver to Dairy Holdings the Company duly executed instruments transferring title to Units to Dairy Holdingsthe Company, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.1(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.1(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement)Prohibited Activity, a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;Date; and
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.1(a)(i), Section 7.2(a)(ii5.1(a)(ii), or Section 7.2(a)(iii)(B5.1(a)(iii), (i) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or a price per Unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice.
(d) and If (yi) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the Company exercises its option to purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of pursuant to this Section 5.1 upon a termination of employment described in Section 7.2(a)(iii)(A5.1(a)(i) or Section 5.1(a)(ii), (ii) within six months following the date of closing of such purchase, a Sale of the Company occurs resulting in the unitholders receiving cash proceeds from such sale, and (iii) the cash proceeds per Unit that would have been received by the Executive with respect to any Units that were repurchased had the Executive continued to hold such Units through the closing of such Sale of the Company would have been greater than the purchase price per unit determined pursuant to Section 5.1(c)(ii) above, then in connection with the consummation of such Sale of the Company, the Executive shall be entitled to receive an amount in cash equal to the lesser product of (Ax) Fair Market Value the number of Rollover Units purchased by the Company pursuant to this Section 5.1 and (measured as y) the amount by which the cash proceeds per each such Unit that would have been so received in connection with such Sale of the date of Company exceeds the Call Noticepurchase price paid by the Company pursuant to Section 5.1(c)(ii) and above.
(Be) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 1015% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings the Company shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.1 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings the Company is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 1015% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Support and Voting Agreement (Vestar Capital Partners v L P)
Call Options. (a) If the Executive's ’s employment with the Company Investors or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the CompanyChange in Control, or if the Executive engages in Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), for any Class E Units issued 181 days or more prior to the date of Executive's ’s termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Class E Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Class E Units), Dairy Holdings Investors shall have the right and option to purchase, and the Executive and the Executive's ’s Permitted Transferees (hereinafter referred to as the "“Executive Group"”) shall be required to sell to Dairy HoldingsInvestors, any or all of such Class E Units then held by such member of the Executive Group (it being understood that if Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings may elect to repurchase only the portion of the Units of such class subject to repurchase hereunder at the lower price), at a price per unit equal to the applicable purchase price determined pursuant to Section 7.2(c4.1(c):
(i) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated due to the Disability, death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated by the Company Investors and its subsidiaries without Cause or by the Executive for Good Reason;; or
(iii) if the Executive's ’s active employment with the Company Investors and its subsidiaries is terminated (A) by the Company Investors or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i4.1(a)(i) or Section 7.2(a)(ii4.1(a)(ii); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings Investors desires to exercise one of its options to purchase Class E Units pursuant to this Section 7.24.1, Dairy Holdings Investors shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a4.1(a), send written notice to each member of the Executive Group of its intention to purchase Units, specifying the number of Class E Units to be purchased (the "“Call Notice"”). Subject to the provisions of Section 85, the closing of the purchase shall take place at the principal office of Dairy Holdings Investors on the later of the 30th 60th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.15.1, the Executive shall deliver to Dairy Holdings Investors duly executed instruments transferring title to Units units to Dairy HoldingsInvestors, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings Investors pursuant to Section 7.2(a4.1(a), the purchase price shall be be:
(in each case after taking account A) with respect to that number of any prior purchases pursuant Class E Units equal to Section 7.2(a)the Unvested Percentage multiplied by the total number of Class E Units issued hereunder (the “Unvested Number”):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 6.1 of this Agreement), or a termination of employment described in Section 4.1(a)(iii), a price per unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 6.2 of this Agreement)) and (B) Cost;; or
(ii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(i)4.1(c)(A)(i) above, Section 7.2(a)(ii), or Section 7.2(a)(iii)(B), a price per unit equal to Cost.
(B) with respect to all Class E Units other than the Unvested Number of Class E Units:
(i) if the number Executive engages in any Competitive Activity, or a termination of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or employment described in Section 4.1(a)(iii), a price per unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice) and (y) the Cost of such Unit (the "Unvested Unit Purchase Price"), and Cost; or
(ii) if the number of such Units exceeds the Unvested Percentage of such class, the purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of a termination of employment described for any reason other than as set forth in Section 7.2(a)(iii)(A4.1(c)(A)(i), a price per unit equal to the lesser greater of (A) Fair Market Value (measured as of the date of the Call NoticeActivity Date) and (B) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 10% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings shall have the right to revoke the exercise of its option pursuant to this Section 7.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 10% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
Samples: Unit Subscription Agreement (Michael Foods Inc/New)
Call Options. (a) If the Executive's ’s employment with the Company or any of its subsidiaries terminates for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company, or if the Executive engages in Competitive Activity any activity prohibited under Section 10 of Executive’s Employment Agreement, dated as of February 21, 2008, by and among the Executive, Holdings and RTS, during the time that such activity is prohibited (as defined in Section 9.1 of this Agreement“Prohibited Activity”), for any Units issued 181 days or more prior to the date of Executive's termination of employment or engagement in Competitive Activity, within 120 days after such date (or in the case of Units issued 180 days or less prior to such date or at any time after such date, no earlier than 181 days and no later than 271 days after the date of issuance of such Units), Dairy Holdings Company shall have the right and option to purchasepurchase for a period of 90 days following the Termination Date (provided that if the Executive’s employment with the Company and its subsidiaries is terminated prior to the six month anniversary of the Closing Date, such 90 day period shall begin on the six month anniversary of the Closing Date) (such period, the “Call Option Exercise Period”), and each member of the Executive and the Executive's Permitted Transferees (hereinafter referred to as the "Executive Group") Group shall be required to sell to Dairy Holdingsthe Company, any or all of such the Rollover Units then held by such member of the Executive Group (it being understood that if the Rollover Units of any class subject to repurchase hereunder may be repurchased at different prices, Dairy Holdings the Company may elect to repurchase only the portion of the Rollover Units of such class subject to repurchase hereunder at the lower price), at a price per unit Unit equal to the applicable purchase price determined pursuant to Section 7.2(c5.2(c):
(i) if the Executive's ’s active employment with the Company and its subsidiaries is terminated due to the Disability, Disability or death or Retirement of the Executive;
(ii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company and its subsidiaries without Cause or (B) by the Executive for Good Reason;
(iii) if the Executive's ’s active employment with the Company and its subsidiaries is terminated (A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any other reason not set forth in Section 7.2(a)(i5.2(a)(i) or Section 7.2(a)(ii5.2(a)(ii) (other than Executive’s Retirement); provided that Dairy Holdings' rights under this Section 7.2(a) shall not be available in the event of the termination of Executive's employment by the Company or its subsidiaries without Cause or by Executive for Good Reason, in either case following a sale by the Company or its subsidiaries of substantially all of the line of business in which Executive primarily performs his services.
(b) If Dairy Holdings the Company desires to exercise one of its options to purchase Units pursuant to this Section 7.2, Dairy Holdings 5.2. the Company shall, not later than the expiration of the applicable period described for such purchase in Section 7.2(a)Call Option Exercise Period, send written notice to each member of the Executive Group of its intention to purchase all or a portion of the Rollover Units, specifying the number of Rollover Units to be purchased and the Fair Market Value of the Rollover Units as of the date of such notice (the "“Call Notice"”). Subject to the provisions of Section 8, 6. the closing of the purchase shall take place at the principal office of Dairy Holdings the Company on the later of the 30th day after the giving of the Call Notice and the date that is 10 business days after the final determination of Fair Market Value. Subject to the provisions of Section 8.16, the Executive shall deliver to Dairy Holdings the Company duly executed instruments transferring title to Units to Dairy Holdingsthe Company, against payment of the appropriate purchase price by cashier's ’s or certified check payable to the Executive or by wire transfer of immediately available funds to an account designated by the Executive.
(c) In the event of a purchase by Dairy Holdings the Company pursuant to Section 7.2(a5.2(a), the purchase price shall be (in each case after taking account of any prior purchases pursuant to Section 7.2(a5.2(a)):
(i) if the Executive engages in any Competitive Activity (as defined in Section 9.1 of this Agreement)Prohibited Activity, a price per unit Unit equal to the lesser of (A) Fair Market Value (measured as of the Activity Date (as defined in Section 9.2 of this Agreement)) and (B) Cost;Date; and
(ii) in the case of a termination of employment described in Section 7.2(a)(i5.2(a)(i), Section 7.2(a)(ii5.2(a)(ii), . or Section 7.2(a)(iii)(B), (i5.2(a)(iii) if the number of Units of any class to be purchased from the Executive Group by Dairy Holdings is less than or a price per Unit equal to the Unvested Percentage of such class, the purchase price for each Unit shall be the lesser of (x) the Fair Market Value (measured as of the date of the Call Notice.
(d) and If (yi) the Cost of such Unit (the "Unvested Unit Purchase Price"), and (ii) if the number of such Units exceeds the Unvested Percentage of such class, the Company exercises its option to purchase price for each Unit shall be (A) for a number of Units of such class equal to the result of (x) the Unvested Percentage and (y) the total number of Units of such class held by the Executive Group, the Unvested Unit Purchase Price, and (B) for the remainder of the Units of such class being repurchased, the Fair Market Value of such Unit (measured as of the date of the Call Notice); and
(iii) in the case of pursuant to this Section 5.2 upon a termination of employment described in Section 7.2(a)(iii)(A5.2(a)(i) or Section 5.2(a)(ii). (ii) within six months following the date of closing of such purchase, a Sale of the Company occurs resulting in the unitholders receiving cash proceeds from such sale, and (iii) the cash proceeds per Unit that would have been received by the Executive with respect to any Units that were repurchased had the Executive continued to hold such Units through the closing of such Sale of the Company would have been greater than the purchase price per unit determined pursuant to Section 5.2(c)(ii) above, then in connection with the consummation of such Sale of the Company, the Executive shall be entitled to receive an amount in cash equal to the lesser product of (Ax) Fair Market Value the number of Rollover Units purchased by the Company pursuant to this Section 5.2 and (measured as y) the amount by which the cash proceeds per each such Unit that would have been so received in connection with such Sale of the date of Company exceeds the Call Noticepurchase price paid by the Company pursuant to Section 5.2(c)(ii) and above.
(Be) Cost. Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Units subject to a Call Notice is finally determined to be an amount at least 1015% greater than the per Unit repurchase price for such Unit in the Call Notice, Dairy Holdings the Company shall have the right to revoke the exercise of its option pursuant to this Section 7.2 5.2 for all or any portion of the Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive Group during the ten-day period beginning on the date that Dairy Holdings the Company is given written notice that the Fair Market Value of a Unit was finally determined to be an amount at least 1015% greater than the per Unit repurchase price set forth in the Call Notice. Notwithstanding anything in this Section 7.2 to the contrary, in the event that Dairy Holdings purchases Units at Fair Market Value pursuant to the terms of this Section 7.2 and within six months of the date of the determination of such Fair Market Value both (A) a Sale of the Company or a Public Offering occurs and (B) in connection with such transaction, the per share value of the Units exceeds the per share purchase price paid by Dairy Holdings to Executive under this Section 7.2, the Executive shall be entitled to receive from Dairy Holdings the benefit of such higher valuation for the Units purchased. The excess of (x) the net proceeds which the Executive would have received in such Sale of the Company or Public Offering from the sale in such transaction of all Units repurchased by Dairy Holdings under this Section 7.2, less (y) the amount which the Executive received from the purchase of such Units by Dairy Holdings, shall be paid by certified or cashier's check or wire transfer of funds to Executive upon consummation of such transaction; provided that, Executive shall have no rights under this paragraph if, in connection with the determination of Fair Market Value of the repurchased Units, the Arbiter was used.
Appears in 1 contract
