Common use of Second Call Right Clause in Contracts

Second Call Right. If the Purchaser’s employment with the Company and any Subsidiary that employs the Purchaser is terminated (i) for Cause at any time, or (ii) for any other reason during the six year period beginning from [ ], the Company shall have the right (the “Second Call Right”) to repurchase up to that number of Shares which are no longer subject to the First Call Right, and shall have 90 days during which to give notice in writing to the Purchaser (or the Purchaser’s estate) of its election to exercise or not to exercise such right, in whole or in part. Subject to Section 6(c), the aggregate purchase price of the Shares purchased pursuant to the Second Call Right shall equal (A) if the Purchaser’s employment is terminated due to his death, Disability or Retirement, by the Company without Cause or by the Purchaser for Good Reason, their aggregate Fair Market Value as of the termination date, and (B) if the Purchaser’s employment is terminated by the Company for Cause or by the Purchaser without Good Reason, the lower of their aggregate Purchase Price and their aggregate Fair Market Value as of the termination date. If the Company fails to give notice that it intends to exercise such right within the period specified or the Company gives notice that it does not intend to exercise such right or that it intends to exercise such right with respect to only a portion of the Shares subject to the Second Call Right, the Purchaser (or the Purchaser’s estate) shall be entitled to (I) if the Purchaser’s employment is terminated for death or Disability, then on notice from the Purchaser (or the Purchaser’s estate) in writing and delivered to the Company within 90 days following the earlier of the last day of the Company’s 90-day notice period and the date the Company delivers written notice to the Purchaser indicating whether the Company will exercise its rights under the Second Call Right, the Company shall purchase all (and not less than all) of the Shares then held by the Purchaser (or the Purchaser’s estate), or (II) retain the Shares which could have been acquired on exercise thereof, subject to all of the provisions of the Agreement (including, but not limited to, the Plan as incorporated by reference herein and the Post-Employment Call Right, the Stockholders Agreement and any other agreement to which such Common Stock is subject). All purchases pursuant to the Second Call Right by the Company shall be in the manner prescribed by Section 4(d) hereof.

Second Call Right. If the Purchaser’s employment with the Company and any Subsidiary that employs the Purchaser is terminated (i) for Cause at any time, or (ii) for any other reason during the six year period beginning from [ ], the Company Progressive shall have the right right, between thirty (30) and sixty (60) days after the Second Put Closing Date (the “Second Call RightPeriod”), to purchase at the Second Put Price up to one hundred percent (100%) of the Shares held by any Stockholder other than Progressive or any of its Affiliates (the “Second Call Potential Sellers”), including Shares issuable upon the exercise of any outstanding stock option (the “Second Call Shares”). Progressive shall exercise its right to purchase the Second Call Shares by providing notice during the Second Call Period (the “Second Call Notice”) to repurchase up each of the Second Call Potential Sellers of its intention to exercise its call right set forth in this Section 3.3(c)(iv) and including in the Second Call Notice the following information: the number of Second Call Shares that Progressive is electing to purchase and the number of Shares which are no longer subject required to be sold by each of the First Second Call Right, and shall have 90 days during which to give notice in writing to Potential Sellers (the Purchaser (or the Purchaser’s estate) of its election to exercise or not to exercise such right, in whole or in part. Subject to Section 6(c“Second Call Actual Sellers”), which shall be determined by the aggregate purchase price percentage of all Second Call Shares held by such Second Call Actual Seller. The Second Call Notice also shall include the Second Put Price and the closing date for the purchase, which shall be a date that is not less than thirty (30) days and not more than forty-five (45) days after the date of the Shares purchased pursuant Second Call Notice (the “Second Call Closing Date”). On the Second Call Closing Date, at the Company’s offices, Progressive shall pay to each Second Call Actual Seller in immediately available funds an amount equal to the Second Put Price times the number of Second Call Right Shares to be sold by such Second Call Actual Seller, and each Second Call Actual Seller shall equal deliver to Progressive stock certificates representing the Second Call Shares to be sold by such Second Call Actual Seller, a stock power duly endorsed to Progressive (or signed in blank) by such Second Call Actual Seller, and such additional information and documentation, including representations as to title to and ownership of the Second Call Shares to be sold by such Second Call Actual Seller, authority of the Second Call Actual Seller to sell such Second Call Shares, and the absence of encumbrances and required governmental and third party approvals and consents, as Progressive may reasonably request from such Second Call Actual Seller. Notwithstanding the foregoing, (A) if the Purchaser’s employment Second Put Price is terminated due the subject of a dispute pursuant to his deathSection 3.3(c)(iii) and Section 3.3(c)(v), Disability or Retirement, by then the Company without Cause or by the Purchaser for Good Reason, their aggregate Fair Market Value as closing of the termination datetransactions contemplated by this Section 3.3(c)(iv) shall be delayed until the third (3rd) Business Day following the date on which such dispute is resolved in accordance with Section 3.3(c)(v), (B) Progressive or a Second Call Actual Seller may delay the closing of the transactions contemplated by this Section 3.3(c)(iv) to the extent necessary to satisfy any applicable regulatory requirements, including obtaining any required consent or approval of any state insurance regulatory authority, and (BC) if any Second Call Shares being sold by a Second Call Actual Seller are Option Shares, then at the Purchaser’s employment is terminated by request of the Second Call Actual Seller and with the consent of the Company, on the Second Call Closing Date, (I) Progressive shall pay to the Company on behalf of such Second Call Actual Seller, in consideration for Cause or by the Purchaser without Good Reasonexercise of such stock option(s), the lower of their aggregate Purchase Price and their aggregate Fair Market Value as of the termination date. If the Company fails to give notice that it intends to exercise such right within the period specified or the Company gives notice that it does not intend to exercise such right or that it intends to exercise such right with respect to only a portion of the aggregate Second Put Price that is equal to the exercise price for the Option Shares subject and the mandatory tax withholding related to such exercise, (II) Progressive shall pay to the Second Call Right, Actual Seller the Purchaser (or the Purchaser’s estate) shall be entitled to (I) if the Purchaser’s employment is terminated for death or Disability, then on notice from the Purchaser (or the Purchaser’s estate) in writing and delivered to the Company within 90 days following the earlier balance of the last day of the Company’s 90-day notice period and the date the Company delivers written notice to the Purchaser indicating whether the Company will exercise its rights under aggregate purchase price for the Second Call RightShares being sold by such Second Call Actual Seller, and (III) the Company shall purchase all (and not less than all) of the issue such Option Shares then held by the Purchaser (or the Purchaser’s estate), or (II) retain the Shares which could have been acquired on exercise thereof, subject to all of the provisions of the Agreement (including, but not limited to, the Plan as incorporated by reference herein and the Post-Employment Call Right, the Stockholders Agreement and any other agreement to which such Common Stock is subject). All purchases pursuant to the Second Call Right by the Company shall be in the manner prescribed by Section 4(d) hereofProgressive.

Second Call Right. If After the Purchaser’s employment with fourth anniversary of the Company and any Subsidiary that employs the Purchaser is terminated (i) for Cause at any timedate hereof, or (ii) for any other reason during the six year period beginning from [ ], the Company HTI shall have the right (the “"Second Call Right”Option") to repurchase up to that number of Shares which are no longer subject to the First Call Right, and shall have 90 days during which to give notice in writing to the Purchaser (or the Purchaser’s estate) of its election to exercise or not to exercise such right, in whole or in part. Subject to Section 6(c), the aggregate purchase price of the Shares purchased pursuant to the Second Call Right shall equal (A) if the Purchaser’s employment is terminated due to his death, Disability or Retirement, exercisable by the Company without Cause or by the Purchaser for Good Reason, their aggregate Fair Market Value as of the termination date, and (B) if the Purchaser’s employment is terminated by the Company for Cause or by the Purchaser without Good Reason, the lower of their aggregate Purchase Price and their aggregate Fair Market Value as of the termination date. If the Company fails to give notice that it intends to exercise such right within the period specified or the Company gives notice that it does not intend to exercise such right or that it intends to exercise such right with respect to only a portion of the Shares subject to the Second Call Right, the Purchaser (or the Purchaser’s estate) shall be entitled to (I) if the Purchaser’s employment is terminated for death or Disability, then on notice from the Purchaser (or the Purchaser’s estate) in writing and delivered to the Company within 90 days following the earlier of the last day of the Company’s 90-day notice period and the date the Company delivers giving written notice to a Securityholder (the Purchaser indicating whether the Company will exercise its rights under the "Second Call RightNotice") to purchase from such Securityholder, at a price equal to the Company shall purchase Put Price, all (and but not less than all) of the Securities owned by such Securityholder; provided, however, that (A) the purchase price for any Additional Shares then held shall be the greater of the Put Price or the original purchase price paid by the Purchaser Securityholder for such Shares, and (or B) in the Purchaser’s estate)case of a Restricted Holder, or HTI may repurchase such Restricted Holder's Debenture Securities for an amount equal to the Applicable Repurchase Price less any damages, as determined by a judgment which has become final and non-appealable of a court of competent jurisdiction (II) retain which shall, for purposes of this Agreement, be deemed to include any mediation to which the Shares which could have been acquired on exercise thereof, subject to all of the provisions of the Agreement (including, but not limited to, the Plan as incorporated by reference herein Restricted Holder and the Post-Company have consented and any arbitration decision rendered, pursuant to Section 11.8 of either Purchase Agreement) that (i) such Restricted Holder materially breached Section 10 or 11 of such Restricted Holder's Employment Call Right, the Stockholders Agreement and (ii) in the event such breach was of a type or nature which is susceptible to cure, such Restricted Holder did not cure such breach within 10 days of written notice of such breach; provided further, however, that pending any other agreement such judgment, (i) the Restricted Holder may not exercise any rights he may have as a Securityholder and (ii) the subject Debenture Securities and any principal or interest, and dividends or distributions, thereon, shall be deposited into an interest bearing escrow account with a financial institution designated by HTI. If such judgment holds that HTI is not entitled to which such Common Stock is subject). All purchases repurchase Debenture Securities pursuant to the Second Call Right by first proviso of this Section 4.2 and (i) that HTI had reasonable grounds for its assertion that it was entitled to repurchase such Debenture Securities pursuant to the Company first proviso of this Section 4.2, then HTI shall be return to the appropriate Restricted Holder all wrongfully escrowed Debenture Securities, principal, interest, dividends and distributions, plus a total of 10% interest (i.e., including interest earned on the escrow account) computed thereon (in the manner prescribed by case of Debenture Securities, on such Debenture Securities' face value) from the date of escrow to the date of return or (ii) that HTI did not have reasonable grounds for its assertion that it was entitled to repurchase Debenture Securities pursuant to the first proviso of this Section 4(d4.2, then HTI shall return to the appropriate Restricted Holder all wrongfully escrowed Debenture Securities, principal, interest, dividends and distributions, plus interest earned on the escrow account plus 15% interest computed on all escrowed Debenture Securities, principal, interest, dividends and distributions (in the case of Debenture Securities, on such Debenture Securities' face value) hereoffrom the date of escrow to the date of return. If such judgment holds that HTI was entitled to repurchase Debenture Securities pursuant to the first proviso of this Section 4.2, the appropriate Restricted Holder shall pay HTI 10% interest on all escrowed amounts (less any interest thereon from the date of escrow to the date of such judgment).

Second Call Right. If (a) During the Purchaser’s employment with the Company and any Subsidiary that employs the Purchaser is terminated (i) for Cause at any timeSecond Call Period, or (ii) for any other reason during the six year period beginning from [ ], the Company Parent shall have the right to purchase from each CO Member (the “Second Call Right”) such CO Member’s Allocable Share of the Second Call/Put Units at a price per Unit equal to repurchase up the applicable Second Determination Date Per Unit Call Price of such Units to that number be sold and Transferred by such CO Member. In order to exercise the Second Call Right, Parent shall deliver a notice in writing (the “Second Call Notice”) to the CO Member Representative of Shares such election, specifying the date on which are no longer subject to the closing of the purchase and sale of the Second Call/Put Units (the “Second Call Closing”) shall occur (the “Second Call Closing Date”), which shall not be more than sixty (60) days after the date of the First Call RightNotice, the number of each class or series of Units to be purchased from each CO Member, and the applicable aggregate Second Determination Date Per Unit Call Price payable to each CO Member in respect of the Second Call/Put Units to be sold by such CO Member at the Second Call Closing. Notwithstanding the foregoing, Parent may elect, by delivering written notice to the CO Member Representative, to delay the Second Call Closing Date to the extent Parent deems it reasonably necessary pursuant to advice of counsel to comply with any applicable law (including Rule 14e-1 under the Exchange Act or any antitrust or competition laws) and in such case the Second Call Closing Date shall be a date that is no later than five (5) Business Days after such date on which all applicable legal or regulatory approvals have 90 days during which to give been obtained or waiting periods have elapsed. Parent may revoke the Second Call Notice by delivering a notice of revocation in writing to the Purchaser CO Member Representative at any time on or prior to the Second Call Closing Date. At the Second Call Closing, Parent shall purchase from each CO Member, and each CO Member shall be required to sell (and shall be deemed to have sold automatically and without any further action of the parties) to Parent, such CO Member’s Allocable Share of the Second Call/Put Units free and clear of all Liens (other than restrictions on Transfer set forth in the Agreement) at a price per Unit equal to the applicable Second Determination Date Per Unit Call Price of such Units sold and Transferred by such CO Member at the Second Call Closing, and the Company shall promptly thereafter update the Schedule of Members to reflect such purchase and sale of the Second Call/Put Units at the Second Call Closing. (b) Parent may elect, in its sole discretion, to pay the Second Call Consideration in cash, in shares of Parent Common Stock or in any combination of the foregoing; provided, however, that each CO Member (and CO Indirect Holder) shall be entitled to receive the same ratio of cash and Parent Common Stock and, if any CO Member (or CO Indirect Holder) is given an option as to the Purchaser’s estateform of consideration to be received, each other CO Member (or CO Indirect Holder) will be given the same option; provided, further, that, notwithstanding the foregoing, if payment to any CO Member (or CO Indirect Holder) in shares of Parent Common Stock would require under applicable law (x) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities; or (y) the provision to any holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, Parent may in its election sole discretion elect to exercise pay the portion of the Second Call Consideration payable to such CO Member (or not to exercise such rightCO Indirect Holder) in cash, notwithstanding that the other CO Members (and CO Indirect Holders) will be paid in shares of Parent Common Stock in whole or in part. Subject To the extent Parent elects to Section 6(c), the aggregate purchase price of the Shares purchased pursuant to the Second Call Right shall equal (A) if the Purchaser’s employment is terminated due to his death, Disability pay all or Retirement, by the Company without Cause or by the Purchaser for Good Reason, their aggregate Fair Market Value as of the termination date, and (B) if the Purchaser’s employment is terminated by the Company for Cause or by the Purchaser without Good Reason, the lower of their aggregate Purchase Price and their aggregate Fair Market Value as of the termination date. If the Company fails to give notice that it intends to exercise such right within the period specified or the Company gives notice that it does not intend to exercise such right or that it intends to exercise such right with respect to only a portion of the Shares subject Second Call Consideration in shares of Parent Common Stock, the number of shares to be issued to the CO Members will be determined by dividing the amount of the Second Call Right, Consideration Parent elects to pay in Parent Common Stock by the Purchaser Applicable Reference Price. No fractional shares of Parent Common Stock will be issued in connection with the payment of the Second Call Consideration. Any CO Member (or the Purchaser’s estateCO Indirect Holder) shall who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (I) if the Purchaser’s employment is terminated for death or Disability, then on notice from the Purchaser after aggregating all fractional shares of Parent Common Stock issuable to such CO Member (or the Purchaser’s estateCO Indirect Holder)) will, in writing and delivered lieu of such fraction of a share, instead be entitled to receive an amount of cash equal to the Company within 90 days following product obtained by multiplying (i) such fraction by (ii) the earlier of the last day of the Company’s 90-day notice period and the date the Company delivers written notice Applicable Reference Price, rounded to the Purchaser indicating whether nearest whole cent. (c) With respect to the Company will exercise its rights under portion of the Second Call RightConsideration that is payable in cash, Parent shall pay or caused to be paid such amounts by wire transfer of immediately available funds to the applicable account of the Paying Agent (for further distribution to the CO Members and, with respect to TopCo and MidCo, the Company shall purchase all (and not less than allCO Indirect Holders) of the Shares then held specified in writing by the Purchaser CO Member Representative no later than five (or the Purchaser’s estate), or (II5) retain the Shares which could have been acquired on exercise thereof, subject to all of the provisions of the Agreement (including, but not limited to, the Plan as incorporated by reference herein and the Post-Employment Call Right, the Stockholders Agreement and any other agreement to which such Common Stock is subject). All purchases pursuant to Business Days following the Second Call Right by Closing Date. With respect to the Company portion of the Second Call Consideration that is payable in Parent Common Stock, promptly following the Second Call Closing Date, Parent shall be deliver to its exchange agent the applicable number of shares of Parent Common Stock for the accounts of the CO Members and, with respect to TopCo and MidCo, then for the accounts of the CO Indirect Holders, in the manner prescribed by Section 4(d) hereofeach case entitled to receive such shares.