Common use of Put by Management Holders Clause in Contracts

Put by Management Holders. (a) (i) If the employment of any Management Holder by the Company or any Subsidiary shall be terminated for any reason (other than for Cause or upon a resignation without Good Reason) prior to the Public Float Date (any such termination being hereinafter referred to as a "Put Event"), any such terminated or resigning Management Holder and his direct and indirect transferees shall have the right (the "Put Option"), subject to Section 2.3(a)(ii) below, by delivery of one or more written notices to the Company (with copies to each Non-Initiating Management Holder and JWC Holder) (the "Put Notice") during the 30-day period beginning on the date of the Put Event (the "Put Period"), to cause the Company to purchase, and the Company shall purchase, all of the Subject Securities that (x) were originally issued by the Company to such Management Holder, and (y) were owned by such Management Holder or his direct or indirect transferees on the date of the Put Event (such Subject Securities to be purchased hereunder being referred to collectively as the "Put Securities"), at the Put Price of such Put Securities as of the date of the Put Event. Neither termination for Cause nor resignation without Good Reason shall constitute a Put Event. (ii) If and to the extent that, subsequent to a Put Event and prior to the expiration of the Put Period with respect to such Management Holder, the Management Holder and his direct and indirect transferees do not elect to exercise the Put Option by delivery of a Put Notice to the Company in accordance with this Section 2.3, all of the Management Holder's and such transferees' rights to sell Put Securities to the Company pursuant to this Section 2.3 shall terminate. (b) The closing of the purchase of any Put Securities from a Management Holder or his direct and indirect transferees pursuant to this Section 2.3 shall take place at the principal office of the Company on such date within 30 days after the expiration of the Put Period with respect to such Management Holder as the Company shall specify to such Management Holder and his direct and indirect transferees in writing. At any closing pursuant to this Section 2.3, the Company shall deliver the payment for the Put Securities in accordance with Section 2.3(e) hereof against delivery of certificates and/or other instruments representing, together with stock or other appropriate powers duly endorsed with respect to, the Put Securities specified in the Put Notice, free and clear of all claims, liens and encumbrances. (c) The Company shall have the right, but not in any case the obligation, to satisfy its obligations pursuant to this Section 2.3 by allowing the Management Holders other than the Management Holder and his direct and indirect transferees, if any, exercising his rights under this Section 2.3 (the "Non-Initiating Management Holders"), to purchase all or any portion of the Put Securities, pro rata in accordance with the Common Stock Equivalents at the time held by such Non-Initiating Management Holders (with rights to over-allotment to the other Non-Initiating Management Holders should any Non-Initiating Management Holder choose to purchase none (or less than its pro rata share) of such Put Securities under this Section 2.3(c)). Each Non-Initiating Management Holder shall, within 30 days after the receipt of the Put Notice by it, notify the Company if such Non-Initiating Management Holder wishes to purchase all or any portion of its pro rata share of the Put Securities at the Put Price. At the closing of the purchase of the Put Securities in accordance with Section 2.3(b) above, each Non-Initiating Management Holder purchasing Put Securities shall deliver a certified check or checks payable to the Management Holder or his direct or indirect transferees, as the case may be, selling Put Securities as specified in the Put Notice, in an aggregate amount equal to the Put Price for such Put Securities, against delivery of certificates and/or other instruments representing the Put Securities to be purchased by it in accordance with this Section 2.3(c), free and clear of all claims, liens and encumbrances, together with stock or other appropriate powers therefor duly endorsed. (d) If and to the extent that, subsequent to a Put Event, the Non-Initiating Management Holders elect to purchase fewer than all of the Put Securities by delivery of written notice to the Company pursuant to Section 2.3(c), the Company shall have the right, but not in any case the obligation, to satisfy its obligations pursuant to this Section 2.3 by allowing the JWC Holders to purchase all or any portion of the Put Securities, pro rata in accordance with the Common Stock Equivalents at the time held by such JWC Holders (with rights to over-allotment to the JWC Holders should any JWC Holder choose to purchase none (or less than its pro rata share) of such Put Securities under this Section 2.3(c)). The procedures by which such JWC Holders shall notify the Company and purchase the Put Securities shall be identical in all respects to the procedures provided for in Section 2.3(c) for the Non-Initiating Management Holders. (e) Notwithstanding anything to the contrary set forth herein, the Company shall not be required to purchase Put Securities pursuant to this Section 2.3 (i) after the Public Float Date, (ii) if, after giving effect to such purchase, the Company would be (or with the lapse of time or the giving of notice would be) in default under any of the agreements and indentures governing indebtedness for borrowed money of the Company or any Subsidiary or (iii) if the Company does not at the time have sufficient funds legally available for such purchase. (f) At each closing for the purchase of Put Securities to be purchased pursuant to Section 2.3(a)(i) above, such Subject Securities shall, subject to Section 2.3(f) below, be purchased as follows: to the extent (and only to the extent) that (i) funds are legally available for the repurchase of equity securities of the Company and (ii) the Company is permitted to repurchase for cash equity securities of terminated employees pursuant to the agreements and indentures governing indebtedness for borrowed money of the Company or any Subsidiary, the Company shall repurchase such Put Securities for cash (by delivery of a certified check or checks payable to the Management Holder or his direct or indirect transferees, as the case may be). If the Company is unable pursuant to the foregoing provisions of this Section 2.3(e) to purchase for cash any Put Securities from any terminated Management Holder or his direct or indirect transferees, the purchase price therefor shall be paid by delivery of a subordinated promissory note (each a "Promissory Note") substantially in the form attached hereto as Exhibit B in an original principal amount equal to the purchase price of such Put Securities not so paid in cash. If an agreement or indenture referred to in clause (ii) above contains a restriction on the amount of Put Securities that can be repurchased from any terminated Management Holder or his direct or indirect transferees in any given fiscal year of the Company, the maximum amount which the Company shall be required to apply to the repurchase of Put Securities pursuant to this Section 2.3 in such fiscal year shall be, in the aggregate, (x) the maximum amount permitted by such agreement or indenture for the fiscal year of the Company in which such Management Holder terminates his employment with the Company, less (y) the aggregate amount previously paid by the Company to repurchase Put Securities from any other Management Holder whose employment with the Company terminated in such fiscal year. (g) Any amounts which would otherwise be available with respect to any fiscal year of the Company for the repurchase of Put Securities and Call Securities shall first be applied to prepayment of outstanding Promissory Notes issued under Section 2.3(e) and any payment-in-kind Promissory Notes issued in payment of interest, in the order in which such Promissory Notes were issued, until all such Promissory Notes have been prepaid in accordance herewith. Prepayments shall be applied first to accrued and unpaid interest and second to principal. 2.4

Put by Management Holders. (a) (i) If the employment of any Management Holder by the Company or any Subsidiary shall be terminated for any reason (other than for Cause or upon a resignation without Good Reason) prior to the Public Float Date (any such termination being hereinafter referred to as a "Put Event"), any such terminated or resigning Management Holder and his direct and indirect transferees shall have the right (the "Put Option"), subject to Section 2.3(a)(ii) below, by delivery of one or more written notices to the Company (with copies to each Non-Non- Initiating Management Holder and JWC Holder) (the "Put Notice") during the 30-day period beginning on the date of the Put Event (the "Put Period"), to cause the Company to purchase, and the Company shall purchase, all of the Subject Securities that (x) were originally issued by the Company to such Management Holder, and (y) were owned by such Management Holder or his direct or indirect transferees on the date of the Put Event (such Subject Securities to be purchased hereunder being referred to collectively as the "Put Securities"), at the Put Price of such Put Securities as of the date of the Put Event. Neither termination for Cause nor resignation without Good Reason shall constitute a Put Event. (ii) If and to the extent that, subsequent to a Put Event and prior to the expiration of the Put Period with respect to such Management Holder, the Management Holder and his direct and indirect transferees do not elect to exercise the Put Option by delivery of a Put Notice to the Company in accordance with this Section 2.3, all of the Management Holder's and such transferees' rights to sell Put Securities to the Company pursuant to this Section 2.3 shall terminate. (b) The closing of the purchase of any Put Securities from a Management Holder or his direct and indirect transferees pursuant to this Section 2.3 shall take place at the principal office of the Company on such date within 30 days after the expiration of the Put Period with respect to such Management Holder as the Company shall specify to such Management Holder and his direct and indirect transferees in writing. At any closing pursuant to this Section 2.3, the Company shall deliver the payment for the Put Securities in accordance with Section 2.3(e) hereof against delivery of certificates and/or other instruments representing, together with stock or other appropriate powers duly endorsed with respect to, the Put Securities specified in the Put Notice, free and clear of all claims, liens and encumbrances. (c) The Company shall have the right, but not in any case the obligation, to satisfy its obligations pursuant to this Section 2.3 by allowing the Management Holders other than the Management Holder and his direct and indirect transferees, if any, exercising his rights under this Section 2.3 (the "Non-Initiating Management Holders"), to purchase all or any portion of the Put Securities, pro rata in accordance with the Common Stock Equivalents at the time held by such Non-Initiating Management Holders (with rights to over-allotment to the other Non-Initiating Management Holders should any Non-Initiating Management Holder choose to purchase none (or less than its pro rata share) of such Put Securities under this Section 2.3(c)). Each Non-Initiating Management Holder shall, within 30 days after the receipt of the Put Notice by it, notify the Company if such Non-Initiating Management Holder wishes to purchase all or any portion of its pro rata share of the Put Securities at the Put Price. At the closing of the purchase of the Put Securities in accordance with Section 2.3(b) above, each Non-Initiating Management Holder purchasing Put Securities shall deliver a certified check or checks payable to the Management Holder or his direct or indirect transferees, as the case may be, selling Put Securities as specified in the Put Notice, in an aggregate amount equal to the Put Price for such Put Securities, against delivery of certificates and/or other instruments representing the Put Securities to be purchased by it in accordance with this Section 2.3(c), free and clear of all claims, liens and encumbrances, together with stock or other appropriate powers therefor duly endorsed. (d) If and to the extent that, subsequent to a Put Event, the Non-Non- Initiating Management Holders elect to purchase fewer than all of the Put Securities by delivery of written notice to the Company pursuant to Section 2.3(c), the Company shall have the right, but not in any case the obligation, to satisfy its obligations pursuant to this Section 2.3 by allowing the JWC Holders to purchase all or any portion of the Put Securities, pro rata in accordance with the Common Stock Equivalents at the time held by such JWC Holders (with rights to over-allotment to the JWC Holders should any JWC Holder choose to purchase none (or less than its pro rata share) of such Put Securities under this Section 2.3(c)). The procedures by which such JWC Holders shall notify the Company and purchase the Put Securities shall be identical in all respects to the procedures provided for in Section 2.3(c) for the Non-Initiating Management Holders. (e) Notwithstanding anything to the contrary set forth herein, the Company shall not be required to purchase Put Securities pursuant to this Section 2.3 (i) after the Public Float Date, (ii) if, after giving effect to such purchase, the Company would be (or with the lapse of time or the giving of notice would be) in default under any of the agreements and indentures governing indebtedness for borrowed money of the Company or any Subsidiary (including, without limitation, the Credit Agreement and the Indenture) or (iii) if the Company does not at the time have sufficient funds legally available for such purchase. (f) At each closing for the purchase of Put Securities to be purchased pursuant to Section 2.3(a)(i) above, such Subject Securities shall, subject to Section 2.3(f) below, be purchased as follows: to the extent (and only to the extent) that (i) funds are legally available for the repurchase of equity securities of the Company and (ii) the Company is permitted to repurchase for cash equity securities of terminated employees pursuant to the agreements and indentures governing indebtedness for borrowed money of the Company or any Subsidiary, the Company shall repurchase such Put Securities for cash (by delivery of a certified check or checks payable to the Management Holder or his direct or indirect transferees, as the case may be). If the Company is unable pursuant to the foregoing provisions of this Section 2.3(e) to purchase for cash any Put Securities from any terminated Management Holder or his direct or indirect transferees, the purchase price therefor shall be paid by delivery of a subordinated promissory note (each a "Promissory Note") substantially in the form attached hereto as Exhibit B in an original principal amount equal to the purchase price of such Put Securities not so paid in cash. If an agreement or indenture referred to in clause (ii) above contains a restriction on the amount of Put Securities that can be repurchased from any terminated Management Holder or his direct or indirect transferees in any given fiscal year of the Company, the maximum amount which the Company shall be required to apply to the repurchase of Put Securities pursuant to this Section 2.3 in such fiscal year shall be, in the aggregate, (x) the maximum amount permitted by such agreement or indenture for the fiscal year of the Company in which such Management Holder terminates his employment with the Company, less (y) the aggregate amount previously paid by the Company to repurchase Put Securities from any other Management Holder whose employment with the Company terminated in such fiscal year. (g) Any amounts which would otherwise be available with respect to any fiscal year of the Company for the repurchase of Put Securities and Call Securities shall first be applied to prepayment of outstanding Promissory Notes issued under Section 2.3(e) and any payment-in-kind Promissory Notes issued in payment of interest, in the order in which such Promissory Notes were issued, until all such Promissory Notes have been prepaid in accordance herewith. Prepayments shall be applied first to accrued and unpaid interest and second to principal. 2.4.