Call Right (a) The holder of a Call Right may purchase Certificates of a given Series or Class from the Holders thereof prior to maturity if the applicable Supplement designates such Series or Class as a Callable Series, or upon the occurrence of a Tax Event or an Optional Redemption. The Call Terms shall be set forth in the applicable Supplement and shall include, without limitation, the following:
(i) the initial holder of the Call Right;
(ii) whether the Certificate Principal Balance or Notional Amount of each Certificate being purchased pursuant to the Call Right must be an Authorized Denomination;
(iii) the Call Date or Dates; and
(iv) the Call Price.
(b) A Call Right may be exercised at the option of the holder thereof, in accordance with the Call Terms, upon not less than 35 days' (or such shorter period acceptable to the Trustee or specified in the applicable Supplement) nor more than 60 days' prior notice sent via facsimile with transmission confirmed to the Trustee at the Corporate Trust Office. Such notice to the Trustee shall include the Certificate Principal Balance (or Notional Amount) of the Certificates to be purchased and shall reference the Call Price and the Call Date. On or prior to the second Business Day following receipt of such notice from the holder of the Call Right, the Trustee shall notify the Holders of the Certificates by first class mail; such notices shall state:
(i) the Certificate Principal Balance (or Notional Amount) of Certificates to be purchased;
(ii) the Call Price;
(iii) the name and address of the Paying Agent;
(iv) that Certificates called for purchase must be surrendered to the Paying Agent in order to collect the Call Price;
(v) that interest on Certificates called for purchase pursuant to the Call Right ceases to accrue on and after the Call Date, and the only remaining right of Holders of such Certificates is to receive payment of the Call Price upon surrender of the Certificates to the Paying Agent; and
(vi) that, if any Certificate contains a CUSIP, CINS or ISIN number, no representation is being made as to the correctness of the CUSIP, CINS or ISIN number either as printed on the Certificates or as contained in such notice and that reliance may be placed only on the other identification numbers printed on the Certificates.
(c) If less than all of the Certificates are to be purchased pursuant to the exercise of the Call Right, the Trustee shall select the Certificates to be purchased in accordance with the requirements of the principal national securities exchange on which the Certificates are listed or, if the Certificates are not listed on a national securities exchange, on a pro rata basis, by lot or by such other method as such Trustee in its sole discretion shall deem to be fair and appropriate. The Trustee shall notify the Depositor and the Certificate Registrar promptly in writing of the Certificates or portions of the Certificates to be purchased by the holder of the Call Right, provided, however, that this Section 4.08(c) shall not apply to Certificates subject to a Call Right due to a Tax Event or an Optional Redemption.
(d) Once such notice is mailed to the Holders, the Certificates called for purchase become due and payable on the Call Date and at the Call Price. Upon surrender of any Certificates to the Paying Agent, the Holders of such Certificates shall be paid the Call Price. Notice of purchase shall be deemed to be given when mailed, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the purchase of Certificates held by Holders to whom such notice was properly given.
(e) At or prior to 12:00 noon on the Call Date, the holder of the Call Right to be exercised shall deposit with the Paying Agent by wire transfer in same-day funds money sufficient to pay the Call Price of the Certificates to be redeemed on that date.
(f) If a notice has been given in the manner provided above, the Certificates or portion of Certificates specified in such notice to be purchased shall become due and payable on the Call Date at the Call Price stated therein, together with accrued interest (if applicable) on and after such dates. Upon surrender of any Certificate in connection with the Call Right, such Certificate shall be paid and redeemed by the holder of the Call Right at the Call Price.
(g) Upon surrender of any Certificate that is purchased in part, the Depositor shall execute and the Trustee shall authenticate and deliver to the Holder a new Certificate equal in principal amount to the unredeemed portion of such surrendered Certificate.
Put Right (a) If, at any time prior to the Lapse Date, a Management Investor's employment with the Company and its Subsidiaries is terminated due to the death or Disability of such Management Investor, then within 180 days of the employment termination date such Management Investor and the members of the Family Group of such Management Investor shall have the option to sell to Sheridan, and Sheridan shall be obligated to purchase, on one occasion from such Management Investor and the members of the Family Group of such Management Investor, all or any portion of the Purchased Shares held by such Management Investor and the members of the Family Group of such Management Investor by providing written notice of his or their election (including the number of Securities to be sold) to Sheridan (a "Put Notice"). The purchase price per share for such Securities will be Fair Market Value on the date of termination of employment.
(b) If, at any time prior to the Lapse Date, a Senior Management Investor's employment with the Company and its Subsidiaries is terminated by the applicable employer without Cause or by such Senior Management Investor with Good Reason, then within 180 days of the employment termination date such Senior Management Investor shall have the option to sell to Sheridan, and Sheridan shall be obligated to purchase, on one occasion from such Senior Management Investor a number of Purchased Shares held by such Senior Management Investor the aggregate purchase price for which under this Section 3.14(b) is not in excess of the aggregate purchase price paid by such Senior Management Investor on the Closing Date for all Securities purchased by such Senior Management Investor on the Closing Date. Such Senior Management Investor shall exercise such put right by providing a Put Notice to Sheridan. The purchase price per share for (A) the Applicable Percentage of such Purchased Shares will be Fair Market Value on the date of termination of employment and (B) the remaining portion of such Purchased Shares, if any, will be the lower of Cost and Fair Market Value on the date of termination of employment.
(c) The completion of the purchase pursuant to Section 3.14 (a) shall take place at the principal office of Sheridan on or prior to the sixtieth day after the giving of the Put Notice. The purchase price for the Purchased Shares included in the Put Notice shall be paid by delivery to the appropriate Management Investor or the members of his Family Group, as applicable, of a certified bank check or checks in the appropriate amount payable to the order of such Management Investor or the members of his Family Group, as applicable, unless a Financing Default exists or, after giving effect to such payment would exist, which prohibits such cash
Notices; Method of Exercising Repurchase Right, Etc (a) Unless the Company shall have theretofore called for redemption all of the outstanding Securities, the Company shall give to the Trustee, the Paying Agent and all Holders of Securities, in the manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of a Fundamental Change that arises as a result of any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of any Company Notice to the Trustee. At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall state:
(i) the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(ii) the date by which the repurchase right must be exercised,
(iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii) the Conversion Price then in effect,
(ix) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right pursuant to Section 3.1 or Section 3.2, a Holder shall deliver to the Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the case of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Securities to which the Repurchase Notice or Fundamental Change Repurchase Notice relates at any time after delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, as the case may be (together with all necessary endorsements), at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall provide a Repurchase Notice or Fundamental Change Repurchase Notice in accordance with the Applicable Procedures of the Depositary.
Call Rights (a) Subject to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant:
(i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b)), the Company shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b);
(ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and
(iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) below.
Put Option The Company hereby grants to Lender an option (the “Put Option”) to sell all or any portion of the Issued Shares (the “Put Shares”) to the Company for a total purchase price of $195,000, pro-rated for any portion thereof (the “Put Price”). The Put Option may be exercised with respect to any amount that is equal to or less than the entire balance of the outstanding Put Shares, at any time during the earlier to occur of the following Put Option exercise periods (the “Put Period”): (a) the ten (10) Business Day period commencing on the first anniversary hereof, or (b) the ten (10) Business Day period commencing on the date which is nine (9) months after the date that the registration statement for the registration of the Issued Shares is declared effective by the SEC . If not exercised during the Put Period, the Put Option shall terminate and shall be of no further force or effect. The Put Option shall be exercisable by Lender’s delivery of written notice to the Company (the “Put Notice”). The Put Notice shall specify the date on which the closing of the purchase of the Put Shares shall take place (the “Put Closing Date”), which such date shall be no earlier than ten (10) days but no later than thirty (30) days from the date of the Put Notice. On or before the Put Closing Date, Lender will deliver to the Company the certificate(s) representing the Put Shares (duly endorsed for transfer by Lender or accompanied by duly executed stock powers in blank) and the Company shall tender to Lender the Put Price in cash by wire transfer of immediately available funds to an account at a bank designated by Lender. The Company and Lender acknowledge and agree that the Company’s obligation to purchase the Issued Shares from Lender pursuant to the Put Option is an Obligation secured by the Collateral and any related guarantees under the Loan Documents, and for so long as the Put Option is outstanding and, if exercised, the Put Price is not yet tendered, the Lender’s right to receive the Put Price shall be secured by the Collateral and any related guarantees under the Loan Documents. Lender’s right to exercise the Put Option shall not be transferred or assigned to any third party.
6.1 Notwithstanding the foregoing, Lender shall have the right, but not the obligation, to accelerate the exercise of the Put Option upon a Fundamental Transaction (as defined in the Loan Agreement), as follows: The Company shall send written notice of the proposed Fundamental Transaction (“Fundamental Transaction Notice”) no later than thirty (30) days prior to the date of the proposed consummation of the Fundamental Transaction, together with all relevant information relating thereto, in form sufficient to enable Lender to make an informed decision as to whether it should accelerate the Put Option. Within fifteen (15) days of Lender’s receipt of the Fundamental Transaction Notice, Lender shall advise the Company whether the Lender has elected to accelerate the exercise of the Put Option. Lender’s failure to timely notify the Company of Lender’s intention to accelerate the Put Option shall be deemed an intention to decline to accelerate the Put Option.
6.2 In addition, notwithstanding the foregoing, Lender shall have the right, but not the obligation, to accelerate the exercise of the Put Option following an Event of Default under the Loan Documents (which acceleration right shall not be waived if not exercised following a prior Event of Default), in which event the Put Price shall be added to the Obligations under the Loan Agreement and secured by the Collateral thereunder, and shall be immediately due and payable to Lender.
6.3 If any portion of the Note is converted into Common Stock pursuant to the Loan Documents, the Put Option set forth hereinabove, if not terminated by its terms herein, shall terminate.
On Call (a) Employees required to be on-call shall be paid one dollar ($1.00) per hour, or portion thereof.
(b) The minimum on-call requirement shall be four (4) consecutive hours.
(c) Should the Employer require an employee to have a pager, beeper or a cellular phone available during their on-call period, then all related expenses for such device shall be the responsibility of the Employer.
No Rights as Shareholder Until Exercise; No Settlement in Cash This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
No Rights as Stockholder Until Exercise; No Settlement in Cash This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
Recall Rights Teachers whose contracts have been suspended or non-renewed because of a reduction in force shall be so notified in writing and shall have rights to recall as follows:
1. Recall rights shall be limited to the twenty-four (24) months period commencing on the day following the employee's last day of work.
2. Teachers whose contracts were non-renewed or suspended shall be recalled to a vacancy in the inverse order of non-renewal or suspension as positions become available in their area of certification/licensure at the time of recall; provided however, that certificated tutors whose contracts were non-renewed or suspended shall be recalled only to certificated tutor vacancies, and then in the inverse order of non-renewal of suspension as such positions become available in their area of certification/licensure at the time of recall; and further provided however, seniority shall not be the basis for recalling a teacher, except when making a decision between teachers who have comparable evaluations. Teachers must notify the District of any changes in their area of certification/licensure.
3. A teacher notified of recall to a position may turn down the first offered position, allowing the Superintendent to offer said position to the next person on the recall list who is qualified to fill said position. The person making the turndown would retain his/her position on the recall list. If a teacher refuses recall to another position, said teacher's name shall be removed from the recall list; except no teacher shall be removed from the recall list for refusing a lesser position (time or pay) than the one from which he/she was reduced. Provided however, no teacher whose continuing contract has been suspended shall lose the right of recall and restoration to continuing service status by reason of having declined recall to a position that is less than full-time or, if the teacher was not employed full-time just prior to suspension of the teacher's continuing contract, to a position requiring a lesser percentage of full-time employment than the position the teacher last held while employed in the district.
4. Teachers on recall status shall have the responsibility for keeping the Superintendent informed of their current address, name change, and telephone number. Notification of recall shall be by certified mail at the teacher's last known address. Failure to contact the Superintendent to accept such recall within ten (10) calendar days of the date of such mailing shall remove the teacher from recall status.
5. Teachers, who during recall receive additional training or additional areas of certification/licensure, shall provide documentation of such to the Board, who shall upgrade the teacher’s status on the Recall List. No new employees shall be hired to fill a vacancy until teachers on the Recall List have been asked to fill the vacancy.
Exercise of Repurchase Right Any Repurchase Right under Paragraphs 15(a) or 15(b) shall be exercised by giving notice of exercise as provided herein to Optionee or the estate of Optionee, as applicable. Such right shall be exercised, and the repurchase price thereunder shall be paid, by the Company within a ninety (90) day period beginning on the date of notice to the Company of the occurrence of such Repurchase Event (except in the case of termination or cessation of services as director, where such option period shall begin upon the occurrence of the Repurchase Event). Such repurchase price shall be payable only in the form of cash (including a check drafted on immediately available funds) or cancellation of purchase money indebtedness of the Optionee for the Shares. If the Company can not purchase all such Shares because it is unable to meet the financial tests set forth in the Nevada corporation law, the Company shall have the right to purchase as many Shares as it is permitted to purchase under such sections. Any Shares not purchased by the Company hereunder shall no longer be subject to the provisions of this Section 15.
