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 Rights The Warrantholder shall have the following Put Rights:
(a) At the earlier of (i) the fifth anniversary of the date hereof and (ii) a Change of Control, the Warrantholder may notify the Company in writing (the "PUT NOTICE") of the Warrantholder's desire to cause the Company to repurchase, in the case of clause (i) above, all (but not less than all) of the Warrant Shares (issued or represented by the Warrant) at a price per share equal to the Repurchase Price (the "Five-Year Put"), or, in the case of clause (ii) above, the Warrant at the Change of Control Repurchase Price (the "Change of Control Put").
(b) If the Company receives a Put Notice pursuant to Section 7(a), it shall deliver to the Warrantholder, by first class mail, postage prepaid, mailed as soon as practicable and if possible within thirty (30) days of the receipt by the Company of the Put Notice, a notice stating: (i) the date as of which such repurchase shall occur (which date (the "Put Closing") shall be not less than ten (10) nor more than thirty (30) days following the date of such notice, but in any event prior to the Expiration Date); (ii) in the case of a Five-Year Put, the number of Warrant Shares (issued or represented by this Warrant) to be purchased from the Warrantholder and the Repurchase Price (which shall be calculated as of the date of the Put Notice) or, in the case of a Change of Control Put, the Change of Control Repurchase Price; and (iii) the place or places where certificate or certificates representing this Warrant or Warrant Shares are to be surrendered for payment; PROVIDED, HOWEVER, that the Company shall have no obligation to send the notice set forth above or to repurchase the Warrants and Warrant Shares following the exercise of the Five Year Put (and the provisions of paragraph (c) below shall not be applicable to any failure by the Company to repurchase the Warrants and the Warrant Shares following the exercise of the Five Year Put), unless the holders of not less than a majority of the shares of Common Stock issued or issuable upon exercise of the Investor Warrants (the "Investor Warrant Shares") shall also have exercised the "five year put" provided for in the Investor Warrants.
(c) With respect to Warrants and Warrant Shares properly tendered for repurchase, if the Company fails to pay the Repurchase Price or the Change of Control Repurchase Price on the date fixed for repurchase, the Corporation shall also pay interest thereon at the rate of 12% per annum, compounded on a quarterly basis, until such time as such satisfaction shall have occurred.
(d) At the Put Closing, the Warrantholder shall deliver to the Company the certificate or certificates representing the Warrantholder's Warrant or Warrant Shares and the Company shall deliver to the Warrantholder an amount equal to, in the case of a Five-Year Put, the product obtained by multiplying (i) the number of such Warrant Shares (issued or represented by this Warrant) by (ii) the Repurchase Price or, in the case of a Change of Control Put, the Change of Control Repurchase Price, by cashier's or certified check payable to the Warrantholder or by wire transfer of immediately available funds to an account designated by the Warrantholder.
(e) The Company shall not (and shall not permit any Affiliate of the Company to) enter into any contract or other consensual arrangement that by its terms restricts the Company's ability to honor the Put.
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
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.
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.
First Refusal Rights The Company may elect to purchase all (but -------------------- not less than all) of the shares of Executive Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering a written notice of such election to Executive and the Investors within 10 days after the Sale Notice has been delivered to the Company. If the Company has not elected to purchase all of the Executive Stock to be transferred, the Investors may elect to purchase all (but not less than all) of the Executive Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering written notice of such election to Executive within 10 days after the Sale Notice has been given to the Investors. If more than one Investor elects to purchase the Executive Stock, the shares of Executive Stock to be sold shall be allocated among the Investors pro rata according to the number of shares of Common Stock owned by each Investor on a fully-diluted basis. If neither the Company nor the Investors elect to purchase all of the shares of Executive Stock specified in the Sale Notice, Executive may transfer the shares of Executive Stock specified in the Sale Notice at a price and on terms no more favorable to the transferee(s) thereof than specified in the Sale Notice during the 60-day period immediately following the Authorization Date. Any shares of Executive Stock not transferred within such 60-day period shall be subject to the provisions of this paragraph 4(c) upon subsequent transfer. If the Company or any of the Investors have elected to purchase shares of Executive Stock hereunder, the transfer of such shares shall be consummated as soon as practical after the delivery of the election notice(s) to Executive, but in any event within 15 days after the expiration of the Election Period. The Company may pay the purchase price for such shares by offsetting amounts outstanding under the Executive Note issued to the Company hereunder and any other bona fide debts owed by Executive to the Company.
Repurchase Rights (i) Upon the termination of employment of the Grantee by the Company or any of its Subsidiaries for any reason (the reason for the termination of such employment, the “Termination Event” and the date of such termination, the “Termination Date”), subject to the provisions of this Section 7 and the prior approval of the Compensation Committee of the Board (or if there is no such Compensation Committee, the Board), the Company shall have the right (but not the obligation) to purchase, and if such right is exercised, the Grantee shall sell, and shall cause any Permitted Transferees of the Grantee to sell (and such Permitted Transferees shall sell), to the Company, all or any portion (as determined by the Company) of the Purchased Shares (if any) owned by the Grantee or his Permitted Transferees at a price per Settlement Share equal to an amount (the “Termination Price”) (as determined pursuant to Section 7(b) below); provided, that the parties acknowledge that any unvested Options held by the Grantee as of the Termination Date shall be cancelled pursuant to this Agreement.
(ii) With respect to the Purchased Shares, the Company shall notify the Grantee in writing, within the Call Period whether the Company will exercise its right to purchase the Purchased Shares (the date on which the Grantee is so notified, the “Call Notice Date”). The Company may assign its right to purchase all or any portion of the Purchased Shares under this Section 7 to the DCP Investor and the DCP Investor may exercise the rights of the Company under this Section 7 in the same manner in which the Company could exercise such rights.
(iii) The closing of the purchase by the Company or the DCP Investor of Purchased Shares pursuant to this Section 7 shall take place at the principal office of the Company, on the date chosen by either the Company or the DCP Investor, as applicable, which date shall, except as may be reasonably necessary to determine the Termination Price, in no event be more than 45 days after the Call Notice Date. At such closing, (i) the Company or the DCP Investor, as applicable, shall pay the Grantee and/or such Grantee’s Permitted Transferees, as applicable, against delivery of duly endorsed certificates described below representing such Purchased Shares, the aggregate Termination Price by wire transfer of immediately available federal funds and (ii) the Grantee and/or such Grantee’s Permitted Transferees, as applicable, shall deliver to the Company a certificate or certificates representing the Purchased Shares to be purchased by the Company or the DCP Investor, as applicable, duly endorsed, or with share (or equivalent) powers duly endorsed, for transfer with signature guaranteed, free and clear of any lien or encumbrance, with any necessary share (or equivalent) transfer tax stamps affixed. The delivery of a certificate or certificates for the Purchased Shares by any Person selling such Purchased Shares pursuant to this Section 7(a)(iii) shall be deemed a representation and warranty by such Person that: (w) such Person has full right, title and interest in and to such Purchased Shares; (x) such Person has all necessary power and authority and has taken all necessary action to sell such Purchased Shares as contemplated; (y) such Purchased Shares are free and clear of any and all liens or encumbrances; and (z) there is no adverse claim with respect to such Purchased Shares.
Rights, Options and Warrants If the Company distributes, to all or substantially all holders of Common Stock, rights, options or warrants (other than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which Sections 5.05(A)(iii)(1) and 5.05(F) will apply) entitling such holders, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; OS = the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced. To the extent such rights, options or warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of only the rights, options or warrants, if any, actually distributed. In addition, to the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, option or warrants. For purposes of this Section 5.05(A)(ii) and Section 5.01(C)(i)(3)(a)(I), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Company in good faith and in a commercially reasonable manner.
Preemptive Rights (a) In the event that the Purchaser Beneficially Owns at least 20% of the aggregate number of shares of NewCo Common Stock then outstanding, if NewCo engages in any transaction involving the direct or indirect sale or issuance of Covered Securities by NewCo and such sale or issuance would cause the Purchaser to Beneficially Own less than 20% of the aggregate number of outstanding shares of NewCo Common Stock immediately following such sale or issuance, the Purchaser will be afforded the opportunity to acquire from NewCo, for the same price and on the same terms as such Covered Securities are offered, up to an amount (the “Amount”) necessary to enable the Purchaser to own 20% of the aggregate number of outstanding shares of NewCo Common Stock immediately following such sale or issuance; provided, that, if the transaction at issue is an acquisition, merger or other business combination involving a Third Party by NewCo in which NewCo issues or sells Covered Securities as consideration for the transaction, such Covered Securities shall be deemed to be offered at the per share purchase price implied from the transaction terms as of the time of entry into the agreement for such transaction; provided, further, that, if such per share purchase price is not reasonably ascertainable, the per share purchase price shall be deemed to be the trading price of the NewCo Common Stock at the close of the business on the day immediately prior to the public disclosure or announcement of such transaction.
(b) If NewCo proposes to engage in a transaction involving the direct or indirect sale or issuance of Covered Securities described in Section 8.12(a) above, NewCo will first submit written notice (the “Notice of Preemptive Rights”) to the Purchaser disclosing the terms of the proposed sale or issuance transaction (which notice will set forth all material terms, including price, number of securities or aggregate principal amount, as applicable, and the type of securities to be sold or issued). The Notice of Preemptive Rights will include an offer to the Purchaser to purchase up to the Purchaser’s Amount of such Covered Securities on terms and conditions, including price, not less favorable to the Purchaser than those on which NewCo proposes to sell such Covered Securities to the third party or parties. Such offer as set forth in the Notice of Preemptive Rights will remain open for a period of at least 15 Business Days after the Notice of Preemptive Rights is delivered, prior to the expiration of which period the Purchaser may accept such offer by written notice to NewCo setting forth the number of Covered Securities that the Purchaser intends to purchase. The consummation of such purchase by the Purchaser shall be conditioned on the simultaneous or prior consummation of the sale described in the Notice of Preemptive Rights. Nothing herein shall prohibit NewCo’s consummation of the sale set forth in the Notice of Preemptive Rights to third parties prior to the sale of Covered Securities to the Purchaser hereunder as long as NewCo has provided Purchaser the required notice hereunder and the Purchaser is simultaneously with or promptly after such consummation provided the opportunity to purchase the amount of Covered Securities that it would have been entitled to purchase if such issuance had occurred at the same time.
(c) Any Covered Securities covered by a Notice of Preemptive Rights which are not purchased by the Purchaser pursuant to Section 8.12(b) may be sold by NewCo to a third party or parties at any time within 180 days following the expiration of the 15 Business Day period specified in Section 8.12(b); provided that each of the price and the other terms and conditions of such sale are not more favorable to such third parties than as set forth in the Notice of Preemptive Rights. For the avoidance of doubt, any sale or issuance of Covered Securities other than in compliance with this Section 8.12(c) will require delivery of a new Notice of Preemptive Rights.
No Preemptive Rights, Registration Rights or Options Except as described in the Disclosure Package and the Prospectus, there are no (i) preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity interests in the Partnership Entities or (ii) outstanding options or warrants to purchase any securities of the Partnership Entities. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Common Units or other securities of the Partnership.
