2nd AMENDED AND RESTATED EXECUTIVE INTEREST SUBSCRIPTION AGREEMENT
Exhibit 10.39
2nd AMENDED AND RESTATED EXECUTIVE INTEREST SUBSCRIPTION AGREEMENT
THIS 2nd AMENDED AND RESTATED EXECUTIVE INTEREST SUBSCRIPTION AGREEMENT (as it may be amended from time to time, this “Agreement”) is made as of August 31, 2010, by and between WENGEN ALBERTA, LIMITED PARTNERSHIP, an Alberta limited partnership (the “Company”), and the individual named on the signature page hereto (“Executive”);
WHEREAS, pursuant to that certain Executive Interest Subscription Agreement made as of August 17, 2007 by and between the Company and Executive, as amended and restated as of December 1, 2008 (the “2008 Subscription Agreement”), Executive subscribed for and acquired from the Company, and the Company issued and provided to Executive, the Time Vesting Incentive Profits Interests in the Company (the “Time Vesting Incentive Profits Interests”) and the Performance Vesting Incentive Profits Interests in the Company (the “Performance Vesting Incentive Profits Interests”, and, together with the Time Vesting Incentive Profits Interests, the “Interests”), in each case in the number set forth on Schedule I, as hereinafter set forth; and
1.3 Advisor. The term “Advisor” shall mean SP-L Founders, LLC.
1.5 Agreement. 11ie term “Agreement” shall have the meaning set forth in the preface.
1 .7 Board. The term “Board” shall mean the Board of Directors of Laureate.
1.1 O Call Exchange Notice Date. The term “Call Exchange Notice Date” shall have the meaning set forth in Section 4.2(a).
1.11 Call Notice. The term “Call Notice” shall have the meaning set forth in Section 4.2(c).
of the Company or of Laureate, as applicable, being held by a Person, which may include any Securityholder or any of their respective Affiliates; provided, however, that in no event shall any relationship among any Securityholder created by the occurrence of the Acquisition (including the Securityholders Agreement and the organizational documents of the Company and its general partner) be deemed to, de facto, create a “group” for purposes of this clause (a); and (b) in the case of the occurrence of an event identified in clause (a), also results in any Person that acquired more than 50% of the total equity interests of the Company or Laureate, as applicable, having the ability to appoint a majority of the applicable board of directors.
1.17 Closing. The term “Closing” shall have the meaning set forth in Section 2.2.
1.18 Closing Date. The term “Closing Date” shall have the meaning set forth in Section 2.2.
1.19 Code. The term “Code” shall mean the Internal Revenue Code of 1986, as amended.
1.20 Company. The term “Company” shall have the meaning set forth in the preface.
1.24 EBITDA. The term “EBITDA” shall have the meaning set forth on Schedule J hereto.
1.26 Escrow Equity. The term “Escrow Equity” shall have the meaning set forth in Section 4.2(c).
1.31 Executive. The term “Executive” shall have the meaning set forth in the preface.
1.3S First Put Triggering Events. The term “First Put Triggering Events” shall have the meaning set forth in Section 4.1(b).
1.38 Founders. The tenn “Founders” shall mean Executive, Xxxxxx Xxxxxxx, Sterling Capital Partners II, L.P., Sterling Capital Partners III, LP. and each of their respective affiliates who acquire Series A-1 Interests in the Company in the Acquisition (other than any Carry Vehicle, SP-L Management, LLC, a Delaware limited liability company or any other party to a Carry Vehicle Agreement).
adverse impact on the business of Laureate, or (B) theft, embezzlement or fraud by Executive in connection with the performance of his duties with Laureate or any of its Subsidiaries.
1.40 Frozen Amount. The Term “Frozen Amount” shall have the meaning set forth in Section 4.2(c) of this Agreement
1.45 IPO Option(s). The term “IPO Option(s)” shall have the meaning set forth in Section 7.
1.47 Laureate. The term “Laureate” shall mean Laureate Education, Inc., a Maryland corporation, and its successors.
1.48 L Curve. The term “L Curve” means L Curve Sub Inc., a Maryland corporation.
1.49 Limited Partner. The term “Limited Partner” shall have the meaning set forth in the LP Agreement.
1.52 Merger. The term “Merger” shall mean the merger of L Curve with and into Laureate pursuant to that certain Amended and Restated Agreement and Plan of Merger between the Company, Laureate and L Curve, dated June 3, 2007, as amended from time to time.
1.56 Person. The term “Person” shall have the meaning set forth in the Securityholders Agreement.
1.59 Put Notice. The term “Put Notice” shall have the meaning set forth in Section 4.l(d).
1.63 SEC. The term “SEC” shall mean the Securities and Exchange Commission
1.66 Securities. The term “Securities” shall mean the Partnership Interests or other equity securities issued from time to time by the Company or the IPO Corporation.
1.68 Securityholder. The term Securityholder shall mean a Person that holds Securities.
1.70 Series A-1 lnterests. The term “Series A-1 Interests” shall have the meaning ascribed to such term in the LP Agreement, and should any Series A-1 Interest be converted or exchanged for substitute or replacement securities, the term Series A-1 lnterests shall also include any substitute or replacement securities that Series A-1 Interests are substituted for or converted into.
1.71 Sterling Affiliate. The term “Sterling Affiliate” shall mean each of Sterling Capital Partners, LLC, a Delaware limited liability company, Sterling Capital Partners, L.P., a Delaware limited partnership, Sterling Capital Partners ll, LLC, a Delaware limited liability company, Sterling Capital Partners II, L.P., a Delaware limited partnership, Sterling Capital Partners Ill, LLC, a Delaware limited liability company, Sterling Capital Partners Ill, L.P., a Delaware limited partnership, Sterling Ventures, LLC, a Delaware limited liability company, Sterling Ventures, L.P., a Delaware limited partnership, Sterling Ventures II,LLC, a Delaware limited liability company, Sterling Ventures II, L.P., a Delaware limited partnership, Fund Management Services, LLC (“FMS”), a Delaware limited liability company aud any current or future Affiliates of auy of the foregoing, including but not limited to future private equity funds managed by FMS and/or with general partners’ controlled by the current principal members of FMS.
1.72 Subsidiary. The term “Subsidiary” shall, with respect to any Person, any other Person of which the first Person owns, directly or indirectly, securities or other ownership interests having voting power to elect a majority of the board of directors or other persons performing similar functions (or, if there are no such voting interests, 50% or more of the equity interests of the second Person).
1.75 Transfer. The term “Transfer” shall have the meaning set forth in the LP Agreement.
L77 Valuation Report. The term “Valuation Report” shall have the meaning set forth in Section 4. l (a)(ii).
1.79 Waiting Period. The term “Waiting Period” shall have the meaning set forth in Section 4.l(b).
2. Subscription for and Grant of lnterests.
2.3 Section 83(b) Election. Within 30 days after the Closing, Executive provided the Company with a copy of a completed election under Code Section 83(b) in the form of Exhibit B attached hereto. Executive filed (via certified mail, return receipt requested) such election with the Internal Revenue Service within 30 days after the Closing, and certified to the Company that he made such timely filing.
3. Investment Representations and Covenants of Executive.
l) the issuance of the Interests has not been registered under the Securities Act;
2) each certificate or instrument evidencing the Interests, if any, has been stamped or otherwise imprinted with the legends (as appropriately completed under the circumstances) set forth in Section 6.2 of the Securityholders Agreement and with a legend (as appropriately completed under the circumstances) in substantially the following form:
‘THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN REPURCHASE OPTIONS AND OTHER PROVISIONS SET FORTH IN AN EXECUTIVE INTEREST SUBSCRIPTION AGREEMENT WITH THE ISSUER DATED AS OF AUGUST 16, 2007, AS AMENDED AND MODIFIED FROM TIME TO TIME, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE”; and
3) a notation has been made in the appropriate records of the Company indicating that the Interests are subject to restrictions on transfer and, if the Company shou ld at some time in the future engage the services of a securities transfer agent, appropriate stop transfer instructions will be issued to such transfer agent with respect to the Interests.
3.3 Additional Investment Representations. Executive represents and warrants that:
1) Executive’s financial situation is such that Executive can afford to bear the economic risk of holding the Interests for an indefinite period of time, has adequate means for providing for Executive’s current needs and personal contingencies, and can afford to suffer a complete loss of Executive’s investment in the Interests;
2) Executive’s knowledge and experience in financial and business matters are such that Executive is capable of evaluating the merits and risks of the investment in the Interests;
3) Executive understands that the Interests are a speculative investment which involves a high degree of risk of loss of Executive’s investment therein, there are substantial restrictions on the transferability of the Interests and, on the Closing Date and for an indefinite period following the Closing, there will be no public market for the Interests and, accordingly, it may not be possible for Executive to liquidate Executive’s investment in case of emergency, if at all;
4) the terms of this Agreement provide that, with respect to the Interests issued to Executive pursuant to this Agreement, if Executive ceases to provide services to the Company or its Subsidiaries, the Company and its Affiliates have the right to repurchase the Interests at a price which may, under certain circumstances, be less than the Fair Market Value thereof;
5) Executive understands and is cognizant of all the risk factors related to the grant or purchase of the Interests and, other than as set forth in this Agreement, no representations or warranties have been made to Executive or Executive’s representatives concerning the Interests or the Company or their prospects or other matters;
6) Executive has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company and its representatives concerning the Company and its Subsidiaries, the Acquisition, the Securityholders Agreement, the LP Agreement, the Company’s and its general partner’s organizational documents and the tenns and conditions of the purchase of the Interests and to obtain any additional information which Executive deems necessary; and
7) Executive is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act.
4. Certain Sales Upon Termination of Employment.
1) Exchange of Vested Interests; Exchange Notice; Exchange Withdrawal. Notice
3) Upon Termination without Cause or for Good Reason. lf Executive’s service with the Company or a Subsidiary is terminated prior to July 11, 2012 by the Company or any of its Subsidiaries without Cause (other than due to Non-Performance or Fraud) or by Executive for Good Reason (collectively, “Second Put Triggering Events”, and together with First Put Triggering Events, a “Put Triggering Event”), Executive shall have the right and option, subject to the provisions of Section 5 hereof, to cause the Company (or the IPO Corporation, with respect to vested IPO Stock) to purchase, (x) immediately with respect to the Equity Interests then held by Executive, Executive’s Family Group and the Founders, as applicable, and
(y) no earlier than the end of the Waiting Period with respect to the Exchanged Interests and/or vested IPO Stock, but in either case, the Put Notice Date must be no later than the first anniversary of the Termination Date (unless extended pursuant to Section 4.l(e)(ii) below), all of Executive’s, Executive’s Family Group’s and/or Founders’ Equity Interests, Exchanged Interests and/or vested IPO Stock, as applicable, at a price equal to the Fair Market Value (measured as of the Purchase Date) thereof.
than thirty (30) days prior to the Put Closing Date. The Company or the IPO Corporation, as applicable, shall provide an updated Valuation Report, with explanations for any material variances from the previous Valuation Report, on the day prior to the Put Closing Date as determined pursuant to Section 4.1(d), and Executive or Executive’s Family Group shall be able to withdraw the Put Notice at any time prior to the closing of the purchase of the Equity Interests, Exchanged Interests or vested lPO Stock, as applicable (the “Second Withdrawal Period”).
1) Exchange of Vested Interests.
(ii) First Call Withdrawal Period. Notwithstanding anything to the contrary set forth in this Section 4.2, in the event that the Company disagrees with the Liquidation Value of the Vested Interests proposed to be liquidated and exchanged for Exchanged Interests, the Company may elect to withdraw the Call Exchange Notice, in which case (A) Executive or Executive’s Family Group, as applicable, shall continue to hold the Vested Interests that were subject to the Call Exchange Notice, and (B) the Company shall be deemed to have irrevocably waived, with respect to such Vested Interests, any future rights pursuant to this Section 4.2. To allow the Company the opportunity to determine if they agree with the Liquidation Value the Company shall have a Valuation Report prepared and finalized within thirty (30) days after the Call Exchange Notice Date, and, the Company shall have fifteen (15) days after receiving the Valuation Report to withdraw the Call Exchange Notice (such period of time, the “First Call Withdrawal Period”).
account with an independent third party reasonably and mutually agreed to by the parties to this Agreement serving as escrow agent pursuant to an escrow agreement to which Executive shall also be a party (the “Escrow Agreement”), and Executive shall promptly thereafter cause all of his Exchanged Interests and vested IPO Stock (the “Escrow Eq uitv”) to be placed into such escrow account. The Company (or the IPO Corporation, as applicable) and Executive shall cause the Escrow Agreement to provide as follows: (I) if Executive is convicted or pleads guilty or nolo contendere to such indictment, then such escrow agent shall deliver the Frozen Amount to Executive and shall deliver the Escrow Equity to the Company (or the IPO Corporation, as applicable); and, alternately, (II) if Executive is not convicted and does not otherwise plead guilty or nolo contendere to such indictment, then (i) such escrow agent shall deliver the Frozen Amount to the Company and shall deliver the Escrow Equity to Executive, and (ii) Executive shall have a put right (which shall be exercisable by delivering a Put Notice for 180 days after a final determination is made pursuant to clause I and II of this Section 4.2(c)) pursuant to the provisions of Section 4.l(c) for all of Executive’s, Executive’s Family Group’s and Founder’s Interests, Equity Interests, Exchanged Interests and/or shares of vested IPO Stock, as if Executive’s service with the Company had been terminated without Cause by the Company.
5) Withdrawal of Call Notice. Notwithstanding anything to the contrary set forth in this Section 4.2, in the event that the Company or the IPO Corporation, as applicable, does not withdraw the Call Exchange Notice during the First Call Withdrawal Period, such .that the Exchange occurs, the Company or the IPO Corporation, as applicable, may nevertheless elect to withdraw the applicable Call Notice if the Company or the [PO Corporation, as applicable, disagrees with the Fair Market Value as determined for purposes of any call right set forth herein, in which event the rights of the Company or the IPO Corporation, as applicable, to exercise its call rights under this Section 4.2 with respect to such Exchanged Interests and vested IPO Stock shall be irrevocably waived and Executive or Executive’s Family Group shall continue to hold such Exchanged Interests and/or vested IPO Stock. To allow the Company or the IPO Corporation, as applicable, the opportunity to determine if it agrees with the Purchase Price determination, the Company or the rPO Corporation, as applicable, may have a Valuation Report prepared thirty (30) days prior to Call Notice Date to determine whether to withdraw the Call Notice.
5. Certain Limitations on the Company’s Obligations to Purchase Securities.
5.1 Deferral of Purchases.
l) Notwithstanding anything to the contrary contained herein, the Company or the IPO Corporation shall not be obligated to make payment for the purchase of any Equity Interests, Exchanged Interests or shares of vested IPO Stock at any time pursuant to Section 4.1, regardless of whether it has received a Put Notice, to the extent that the payment for the purchase of such Equity Interests, Exchanged Interests or shares of vested IPO Stock would jeopardize the ability of Laureate (or the IPO Corporation (as the case may be)) to continue as a going concern, as determined reasonably and in good faith by the Board after consultation with the Company’s or the IPO Corporation’s, as applicable, financial advisors (to the extent permitted under (and within the meaning of) Code Section 409A and any published interpretations or other guidance issued or promulgated thereunder). The Company or the IPO Corporation, as applicable, shall, within five (5) days after learning of any such determination, so notify Executive or Executive’s Family Group that it is not obligated to make payment for the purchase of the Equity Interests, Exchanged Interests or shares of vested IPO Stock hereunder and the amount of the payment that will not be made if the Company or the IPO Corporation, as applicable, is able to make a partial payment.
2) Notwithstanding anything to the contrary contained in Section 4.1, for any Equity Interests, Exchanged Interests or vested IPO Stock which Executive or Executive’s Family Group has elected to sell under Section 4.1(b) or (c), but for which, in accordance with Section 5. l(a), payment is not promptly made at the applicable time provided in Section 4.1 and for which the Executive or Executive’s Family Group has not withdrawn the Put Notice pursuant to Section 4.l(e)(ii), then. unless Executive or Executive’s Family Group has previously withdrawn the applicable Put Notice, the Company or IPO Corporation, as applicable, shall pay all or part of the outstanding an1ount due (in the manner provided in Section 5.2) within fifteen (15) days after the date the payment of such amounts would not jeopardize the ability of Laureate or the IPO Corporation, as applicable, to continue as a going concern, as determined as provided in Section 5. l(a) above.
5.2 Payment for Series A-I Interests, Vested Interests or! PO Stock. If at any time Executive or Executive’s Family Group elects to put an Equity Interests, Exchanged Interests or shares of vested IPO Stock to the Company or the IPO Corporation, as applicable, pursuant to Section 4.1, or if at any time the Company or the IPO Corporation, as applicable, elects to purchase any Exchanged Interests or vested IPO Stock pursuant to Section 4.2, unless otherwise provided for herein, the Company or the IPO Corporation, as applicable, shall pay for the Equity Interests, Exchanged Interests or shares of vestedIPO Stock it purchases by the Company’s or the IPO Corporation’s delivery of a check or wire transfer of immediately available funds for the
purchase price against delivery of the certificates or other instruments, if any, representing the Equity Interests, Exchanged Interests or shares of vested IPO Stock so purchased, duly endorsed.
1) During the period commencing on August 17, 2007 and ending on the later of the date that is (i) two years after the Termination Date if the termination is (A) by the Company or any of its Subsidiaries without Cause or {B) by Executive following the sale of all of the issued and outstanding equity of the Company or Laureate, (ii) three years after the Termination Date if (A) Executive’s service with the Company and its Subsidiaries is terminated by the Company or any of its Subsidiaries for Cause or Non-Performance or (B) Executive resigns for Good Reason or (iii) five years after the Termination Date if Executive’s service with the Company and its Subsidiaries is terminated by Executive and such termination is not {A) for Good Reason or (B) following the sale of all of the issued and outstanding equity of the Company or Laureate (the “Restricted Period”), Executive will not directly or indirectly, on Executive’s own behalf or as partner, owner, officer, director, stockholder, member, employee, agent or consultant of any other Person (including, without limitation any Sterling Affiliate):
(i) engage in any business that competes with the business of the Company or any of its Subsidiaries, including post-secondary education as conducted by the Company or Subsidiaries as of the Termination Date, in any geographical area where the Company or any of its Subsidiaries conduct business as of the Termination Date (a “Competitive Business”);
(ii) enter the employ of, or render any services to, any Person (or any division controlled by any Affiliate of such Person) who or which engages in a Competitive Business; or
(iii) acquire a financial interest in, or otherwise become actively involved with, a:ny Competitive Business, directly or indirectly, as an individual, · partner, shareholder, officer, d irector, principal, agent, trustee or consultant.
2) Notwithstanding anything to the contrary in this Agreement, Executive may directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national securities stock exchange if Executive (i) is not a controlling person of, or a member of a group which controls, such Person, (ii) does not, directly or indirectly, own 1% or more of any class of securities of such Person and (iii) does not serve as a director of, or have any rights to designate or nominate any director for such Person or any of its Affiliates.
3) Notwithstanding anything to the contrary in this Agreement, the Executive shall not be deemed to violate this Section 6.1 solely by virtue of the Executive’s direct or indirect ownership of the outstanding securities of any Sterling Affiliate (or of any Person through a Sterling Affiliate) that would otherwise be included in Section 6.1 (a “Competitive Entity”), provided that Executive’s direct or indirect ownership of such Competitive Entity does not exceed 5% of the outstanding securities of such Competitive Entity; provided that in all cases
(w) Executive shall refrain from any activity, with respect to any Sterling Affiliate, that is competitive with the Company or its Affiliates or which would reasonably be expected to result in a misappropriation of a business opportunity of the Company or its Affiliates; (x) Executive shall provide written notice of the direct or indirect ownership by Executive of any Competitive Entity and/or any decision, that would reasonably be expected to cause any Sterling Affiliate (or Person in which Executive has an ownership interest through a Sterling Affiliate) that is not a Competitive Entity to become a Competitive Entity (it1cluding, in each case, the material terms and conditions thereof, to the extent known by Executive) to the Board as soon as practicable (and in all events within 30 days) after Executive becomes aware of such ownership or such competitive activity or such decision, as the case may be; (y) Executive shall not be permitted to, directly or indirectly, participate m, or attempt to influence, the management, direction or policies of (other than through the exercise of any voting rights held by Executive in connection with such securities), any such Competitive Entity; and (z) on a quarterly basis, Executive shall provide a report to the Board setting forth, in reasonable detail (to the extent known by Executive and not a violation of Executive’s fiduciary duties and duties of confidentiality), a general description of the business activities and plans of such Competitive Entity, and any and all other information relating to Executive’s activities with respect thereto reasonably requested by the Board; provided that (I) the Board, by majority vote of those directors not designated by a Sterling Affiliate, may waive (in writing or by resolution) any noncompetition provisions described in this Section 6.1(c) in its discretion; and (IT) Executive shall not be deemed to have violated the foregoing provisions solely by virtue of the listing of his membership on the board of managers (or similar body) of any Sterling Affiliate in connection with an offering of securities.
4) It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 6.1 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be _ enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
6.2 Notwithstanding anything herein to the contrary, to the extent the terms of Section 6.1 are inconsistent with the terms of any employment or non-competition agreement between Executive and the Company or any of its Subsidiaries, for purposes of this Agreement only, the terms of this Agreement shall be regarded as in addition to, and in lieu of, those terms set forth in the terms of any employment or non-competition agreement between Executive and the Company or any of its Subsidiaries.
7. Effect of a Public Offering on Interests.
7.1 Unless otherwise agreed in writing by the Company and Executive, on or immediately following the consummation of a Public Offering of the IPO Corporation, the Company shall cause the following to occur:
I) all Interests held by Executive or Executive’s Family Group shall be marked-to-market, taking into account the terms by which such holder participated in the profits of the Company prior to the Public Offering with respect to the Interests pursuant to the terms and conditions set forth in the LP Agreement and such Interests shall then be liquidated, in whole or in part, and the holder thereof shall receive from the Company IPO Stock with a Fair Market Value (determined as of the date of such liquidation) equal to the Fair Market Value (determined as of the date of such liquidation) of the liquidated Interests. The Company will cause the IPO Corporation to become a party to this Agreement to the extent necessary to effect the provisions of this Section 7.1, Section 4.1 and 4.2, as applicable. To the extent such Interests were Unvested Interests, anyIPO Stock received in liquidation of such holders’ Unvested Interests shall be subject to the same time and performance vesting schedule as such Unvested Interests on the same terms as set forth on Schedule I to this Agreement; and
2) the IPO Corporation shall also issue or cause to be issued to Executive an option to purchase shares of IPO Stock with an exercise price equal to the offering price of the IPO Stock ill such Public Offering (“ PO Options”). Executive shall receive IPO Options on a number of shares of IPO Stock which, when aggregated with the number of shares of IPO Stock received pursuant to Section 7.](a), shall equal the same ownership percentage that the Interests represented, through the Company’s ownership of Laureate, in Laureate immediately prior to the Public Offering. Any IPO Options received by Executive shall be vested and unvested in the same proportion as the Interests that were liquidated as described in Section 7. l(a) above, and any such unvested IPO Options shall be subject to the same time and performance vesting schedule as the liquidated Unvested Interests on the same terms as set forth on Schedule I to this Agreement.
Notwithstanding any of the foregoing, if the Board determines, prior to the Public Offering, that after the Public Offering the Company will own Subsidiaries that will not be Subsidiaries of the IPO Corporation (the “Non-IPO Subsidiaries”), then the Executive and the Company agree that the Executi ve or Executive’s Family Group, as applicable, and the Company shall work together at such time in good faith to reasonably agree on an equitable method of determining how the Executive will continue to be able to participate in the profits of both the IPO Corporation and the Non-IPO Subsidiaries, it being understood by all parties to this Agreement that such equitable method may require that not all Interests shall be converted, pursuant to the formula set forth in this Section 7. I above, into shares of IPO Stock.
7.2 Any shares of IPO Stock shall be subject to the same tag-along, drag-along and registration rights and obligations as are applicable to the shares of common stock of Laureate held by other members of Laureate management, as specified in the Management Stockholder’s Agreement.
“Management Stockholder’s Agreement”), including without limitation the restrictions on Transfer set forth therein. Executive further acknowledges and agrees that Unvested Interests and IPO Options are not transferable. Any Transfer or attempted Transfer of Interests, Exchanged Interests, IPO Stock or IPO Options in violation of any provision of this Agreement, the LP Agreement, the Securityholders Agreement or the Management Stockholder’s Agreement shall be void, and neither the Company nor Laureate shall record such Transfer on its books or treat any purported transferee of such Interests, Exchanged Interests, PO Stock or IPO Options as the owner of such Interests, Exchanged Interests, IPO Stock or IPO Options for any purpose.
8.3 Executive’s Service with Company and its Subsidiaries. Nothing contained in this Agreement shall be deemed to obligate the Company or any Subsidiary of the Company to accept Executive’ s services in any capacity whatsoever or to prohibit or restrict the Company (or any Subsidiary) from terminating the service of Executive at any time or for any reason whatsoever, with or without Cause.
(charges prepaid) and three days after deposit in the U.S. Mail (postage prepaid and return receipt requested) to the address set forth below or such other address as the recipient party has previously provided to the sending party.
l) Ifto the Company:
Wengen Alberta, Limited Partnership
9 West 57’h Street, Suite 4200
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopy: [ ]
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telecopy: [ ]
2) If to the Executive, to the address as provided on Appendix 2 of the LP Agreement.
With a copy to:
Xxxxxx Xxxxxx Xxxxxxxx LLP
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx, Esq.
Tel: [ ]
Fax: [ ]
8.9 Integration. This Agreement and the documents referred to herein (including the Securityholders Agreement and the LP Agreement) or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to the subject matter hereof and thereof. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter, including, without limitation, the 2008 Subscription Agreement, other than as specifically provided for herein and therein.
8.11 Injunctive Relief Executive and any permitted transferee each acknowledges and agrees that a violation of any of the terms of this Agreement will cause the Company irreparable injury for which adequate remedy at law is not available. Accordingly, it is agreed that the Company shall be entitled to an injunction, restraining order or other equitable relief to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction in the United States or any state thereof, in addition to any other remedy to which it may be entitled at law or equity.
* * * * *
IN WITNESS WHEREOF, the parties have executed this Amended and Restated Executive Interest Subscription Agreement as of the date first above written.
|
THE COMPANY: | |
|
| |
|
WENGEN ALBERTA, LIMITED PARTNERSHIP | |
|
| |
|
By: |
Wengen Investments Limited, |
|
|
|
|
|
|
|
By: |
[ILLEGIBLE] |
|
|
Name: |
|
|
Title: |
|
|
|
|
| |
|
EXECUTIVE: | |
|
| |
|
| |
|
|
/s/Xxxxxxx X. Xxxxxx |
|
|
Xxxxxxx X. Xxxxxx |