AMENDMENT TO MANAGEMENT UNIT SUBSCRIPTION AGREEMENT[S] (Class B, Class C and Class D Common Units)
Exhibit 10.19
AMENDMENT TO MANAGEMENT UNIT SUBSCRIPTION AGREEMENT[S]
(Class B, Class C and Class D Common Units)
THIS AMENDMENT (this “Amendment”) is made as of [ ], 2009, to that certain
Management Unit Subscription Agreement (Class B Units, Class C Units and Class D Units) (the
“Agreement”), dated as of , 200[_], by and between NMH Investment, LLC, a
Delaware limited liability company (the “Company”), and [ ] (“Executive”)
and is made by and between the Company and Executive. Capitalized terms used and not otherwise
defined herein have the meanings set forth in the Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 4.2 of the Agreement. In accordance with Section 7.6 of the
Agreement, Section 4.2 of the Agreement is hereby amended as follows: Section 4.2 is hereby deleted
in its entirety and replaced with the following:
“4.2 Call Options.
(a) If the Executive’s employment with the Company and its subsidiaries terminates
for any of the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale
of the Company, or if the Executive engages in “Competitive Activity” (as defined in
Section 6.1 of this Agreement), the Company shall have the right and option to
purchase for a period of seven months following the Termination Date, and each
member of the Executive Group shall be required to sell to the Company, any or all
of such Units then held by such member of the Executive Group (it being understood
that if Units of any class subject to repurchase hereunder may be repurchased at
different prices, the Company may elect to repurchase only the portion of the Units
of such class subject to repurchase hereunder at the lower price), at a price per
unit equal to the applicable purchase price determined pursuant to Section 4.2(c):
(i) if the Executive’s employment with the Company and its subsidiaries
is terminated due to the Disability, death or Retirement of the
Executive;
(ii) if the Executive’s employment with the Company and its
subsidiaries is terminated by the Company and its subsidiaries without
Cause or by the Executive for Good Reason;
(iii) if the Executive’s employment with the Company and its
subsidiaries is terminated (A) by the Company or any of its
subsidiaries for Cause or (B) by the Executive for any other reason not
set forth in Section 4.2(a)(i) or Section 4.2(a)(ii).
(b) If the Company desires to exercise one of its options to purchase Units pursuant
to this Section 4.2, the Company shall, not later than seven months after
the Termination Date, send written notice to each member of the Executive Group of
its intention to purchase Units, specifying the number of Units to be purchased (the
“Call Notice” and the date that such Call Notice is given, the “Call
Notice Date”). Subject to the provisions of Section 5, the closing of the
purchase shall take place at the principal office of the Company on a date specified
by the Company no later than the 30th day after the the Call Notice Date.
(c) In the event of a purchase by the Company pursuant to Section 4.2(a), the
purchase price shall be:
(i) with respect to a purchase of all Units, in the case of a
termination of employment described in Section 4.2(a)(iii)(A) or if
Executive engages in a “Competitive Activity” (as defined in Section 6.1
of this Agreement), a price per Unit equal to the lesser of (A) Fair
Market Value (measured as of the Call Notice Date) and (B) Cost;
(ii) with respect to a purchase of Class B Units, in the case of a
termination of employment described in Section 4.2(a)(i) or Section
4.2(a)(ii), with respect to the number of Units being purchased which is
the product of (x) the total number of Units being purchased and (y) the
Applicable Percentage (measured as of the Termination Date), a price per
Unit equal to Fair Market Value (measured as of the Call Notice Date),
and (if the Applicable Percentage (measured as of the Termination Date)
is less than 100%) the purchase price with respect to the remaining
Units being sold shall be a price per Unit equal to the lesser of (A)
Fair Market Value (measured as of the Call Notice Date) and (B) Cost;
(iii) with respect to a purchase of Class B Units, in the case of a
termination of employment described in Section 4.2(a)(iii)(B), with
respect to the number of Units being purchased which is the product of
(x) the total number of units being purchased and (y) the Applicable
Percentage (measured as of the Termination Date), a price per Unit equal
to Fair Market Value (measured as of the Call Notice Date), and (if the
Applicable Percentage (measured as of the Termination Date) is less than
100%) the purchase price with respect to the remaining Units being sold
shall be a price per Unit equal to the lesser of (A) Fair Market Value
(measured as of the Call Notice Date) and (B) Cost;
(iv) with respect to a purchase of Class C Units or Class D Units, in
the case of a termination of employment prior to [ ]1 described
in Section 4.2(a)(iii)(B), a price per Unit equal to the lesser of (A)
Fair Market Value (measured as of the Call Notice Date) and (B) Cost;
and
| 1 | Three years after the applicable Vesting Measurement Date. |
2
(v) with respect to a purchase of Class C Units or Class D Units, in the
case of a termination of employment described in Section 4.2(a)(i) or
Section 4.2(a)(ii) or a termination of employment on or after
[ ]2 described in Section 4.2(a)(iii)(B), a price per Unit equal
to Fair Market Value (measured as of the Call Notice Date);
provided that in any case the Board shall have the right, in its sole
discretion, to increase any purchase price set forth above.”
2. Effect of Amendment. All references to “this Agreement” in the Agreement shall
mean the Agreement as amended by this Amendment. Except as provided in this Amendment, no other
provisions of the Agreement, as amended, shall be amended and the Agreement will remain in full
force and effect.
3. Counterparts. This Amendment may be executed in multiple counterparts (including
by means of telecopied signature pages), any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one and the same
instrument.
4. Governing Law. This Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
therein.
* * * * *
| 2 | Three years after the applicable Vesting Measurement Date. |
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first written
above.
| NMH INVESTMENT, LLC, a Delaware limited liability company |
||||||
| By: | ||||||
| Title: President | ||||||
| [Name of Executive] | ||||||
SIGNATURE PAGE TO AMENDMENT TO MANAGEMENT UNIT
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
