BY THE EMPLOYEE OR DIRECTING THAT THE SHARES
BE SO TRANSFERRED TO THE PURCHASER THEREOF, AS THE COMPANY MAY REASONABLY
REQUIRE.
(E)
APPLICATION OF THE PURCHASE PRICE TO CERTAIN LOANS OR OTHER
OBLIGATIONS.
THE COMPANY SHALL BE ENTITLED TO APPLY ANY AMOUNTS OTHERWISE
PAYABLE PURSUANT TO THIS SECTION 5 TO DISCHARGE ANY INDEBTEDNESS OF THE EMPLOYEE
TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR INDEBTEDNESS THAT IS GUARANTEED BY
THE COMPANY OR ANY OF ITS SUBSIDIARIES OR TO OFFSET ANY SUCH AMOUNTS AGAINST ANY
OTHER OBLIGATIONS OF THE EMPLOYEE TO THE COMPANY OR ANY OF ITS SUBSIDIARIES.
(F)
CERTAIN RESTRICTIONS ON REPURCHASES; DELAY OF REPURCHASE.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE COMPANY SHALL NOT BE
PERMITTED OR OBLIGATED TO MAKE ANY PAYMENT WITH RESPECT TO A REPURCHASE OF ANY
SHARES FROM THE EMPLOYEE IF (I) SUCH REPURCHASE (OR THE PAYMENT OF A DIVIDEND BY
A SUBSIDIARY TO THE COMPANY TO FUND SUCH REPURCHASE) WOULD RESULT IN A VIOLATION
OF THE TERMS OR PROVISIONS OF, OR RESULT IN A DEFAULT OR AN EVENT OF DEFAULT
UNDER ANY GUARANTY, FINANCING OR SECURITY AGREEMENT OR DOCUMENT ENTERED INTO BY
THE COMPANY OR ANY SUBSIDIARY FROM TIME TO TIME (THE "FINANCING AGREEMENTS"),
(II) SUCH REPURCHASE WOULD VIOLATE ANY OF THE TERMS OR PROVISIONS OF THE
CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE COMPANY OR (III) THE COMPANY HAS
NO FUNDS LEGALLY AVAILABLE TO MAKE SUCH PAYMENT UNDER THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE.
IF PAYMENT WITH RESPECT TO A REPURCHASE BY THE
COMPANY OTHERWISE PERMITTED OR REQUIRED UNDER THIS SECTION 5 IS PREVENTED BY THE
TERMS OF THE PRECEDING SENTENCE: (I) THE PAYMENT OF THE APPLICABLE PURCHASE
PRICE SHALL BE POSTPONED AND WILL TAKE PLACE AT THE FIRST OPPORTUNITY THEREAFTER
WHEN THE COMPANY HAS FUNDS LEGALLY AVAILABLE TO MAKE SUCH PAYMENT AND WHEN SUCH
PAYMENT WILL NOT RESULT IN
6
ANY DEFAULT, EVENT OF DEFAULT OR VIOLATION UNDER ANY OF THE FINANCING AGREEMENTS
OR IN A VIOLATION OF ANY TERM OR PROVISION OF THE CERTIFICATE OF INCORPORATION
OR BY-LAWS, (II) SUCH REPURCHASE OBLIGATION SHALL RANK AGAINST OTHER SIMILAR
REPURCHASE OBLIGATIONS WITH RESPECT TO COMMON STOCK ACCORDING TO PRIORITY IN
TIME OF THE EFFECTIVE DATE OF THE TERMINATION OF EMPLOYMENT GIVING RISE TO SUCH
REPURCHASE (PROVIDED THAT ANY REPURCHASE COMMITMENT ARISING FROM DISABILITY OR
DEATH SHALL HAVE PRIORITY OVER ANY OTHER REPURCHASE OBLIGATION) AND (III) THE
PURCHASE PRICE, EXCEPT IN THE CASE OF A TERMINATION FOR CAUSE, SHALL BE
INCREASED BY AN AMOUNT EQUAL TO INTEREST ON SUCH PURCHASE PRICE FOR THE PERIOD
DURING WHICH PAYMENT IS DELAYED AT AN ANNUAL RATE EQUAL TO THE WEIGHTED AVERAGE
COST OF THE COMPANY'S SENIOR SECURED BANK INDEBTEDNESS OUTSTANDING DURING THE
DELAY PERIOD.
(G)
RIGHT TO RETAIN SHARES.
IF THE OPTIONS OF THE COMPANY AND THE CD&R
INVESTORS TO PURCHASE THE SHARES PURSUANT TO THIS SECTION 5 ARE NOT EXERCISED
WITH RESPECT TO ALL OF THE SHARES, THE EMPLOYEE SHALL BE ENTITLED TO RETAIN THE
REMAINING SHARES, ALTHOUGH THOSE SHARES SHALL