THIS
SECTION 4(B) SHALL BE VOID AB INITIO.
SECTION 5.
OPTIONS EFFECTIVE ON TERMINATION OF EMPLOYMENT PRIOR TO A
PUBLIC OFFERING.
(A)
RIGHTS OF THE COMPANY AND THE INITIAL INVESTORS.
IF THE EMPLOYEE'S
EMPLOYMENT WITH THE COMPANY TERMINATES FOR ANY REASON PRIOR TO A PUBLIC
OFFERING, THE COMPANY MAY ELECT TO PURCHASE ALL OR A PORTION OF THE SHARES BY
WRITTEN NOTICE TO THE EMPLOYEE DELIVERED ON OR BEFORE THE 60TH DAY AFTER THE
DETERMINATION DATE (THE "FIRST OPTION PERIOD").
THE CD&R INVESTORS MAY ELECT TO
PURCHASE ALL OR ANY PORTION OF THE SHARES THAT THE COMPANY HAS NOT ELECTED TO
PURCHASE BY WRITTEN NOTICE TO THE EMPLOYEE DELIVERED AT ANY TIME ON OR BEFORE
THE 80TH DAY AFTER THE DETERMINATION DATE (THE "SECOND OPTION PERIOD").
(B)
LIMITED RIGHT OF THE EMPLOYEE TO REQUIRE THE COMPANY TO REPURCHASE
SHARES.
IF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY IS TERMINATED PRIOR TO A
PUBLIC OFFERING BY THE EMPLOYEE UPON RETIREMENT OR BY REASON OF THE DISABILITY
OR DEATH OF THE EMPLOYEE OR IS TERMINATED BY THE COMPANY WITHOUT CAUSE
(INCLUDING IN CONNECTION WITH A SALE BY THE COMPANY OF THE DIVISION OR
SUBSIDIARY DIRECTLY EMPLOYING THE EMPLOYEE), THE EMPLOYEE MAY REQUIRE THE
COMPANY TO PURCHASE ALL (BUT NOT LESS THAN ALL) OF AN EMPLOYEE'S SHARES
(EXCLUDING ANY SHARES ACQUIRED ON EXERCISE OF AN OPTION) BY WRITTEN NOTICE
DELIVERED TO THE COMPANY WITHIN 30 DAYS FOLLOWING THE EXPIRATION OF THE SECOND
OPTION PERIOD.
(C)
PURCHASE PRICE.
THE PURCHASE PRICE PER SHARE PURSUANT TO THIS
SECTION 5 SHALL EQUAL THE FAIR MARKET VALUE AS OF THE LATER OF (I) THE EFFECTIVE
DATE OF THE EMPLOYEE'S TERMINATION OF EMPLOYMENT (DETERMINED WITHOUT REGARD TO
ANY STATUTORY OR DEEMED OR EXPRESS CONTRACTUAL NOTICE PERIOD) AND (II) SIX
MONTHS AND ONE DAY FROM THE DATE OF THE EMPLOYEE'S ACQUISITION OF THE SHARES
PURSUANT TO THIS AGREEMENT (SUCH DATE, THE "DETERMINATION DATE"), PROVIDED THAT
IF THE EMPLOYEE'S EMPLOYMENT IS TERMINATED BY THE COMPANY FOR CAUSE, THE
PURCHASE PRICE PER SHARE SHALL EQUAL THE LESSER OF (I) THE FAIR MARKET VALUE OF
SUCH SHARE AS OF THE
5
DETERMINATION DATE AND (II) THE PRICE AT WHICH THE EMPLOYEE PURCHASED SUCH SHARE
FROM THE COMPANY PURSUANT TO THIS AGREEMENT.
(D)
CLOSING OF PURCHASE; PAYMENT OF PURCHASE PRICE.
SUBJECT TO
SECTION 5(F), THE CLOSING OF A PURCHASE PURSUANT TO THIS SECTION 5 SHALL TAKE
PLACE AT THE PRINCIPAL OFFICE OF THE COMPANY NO LATER THAN THE 90TH DAY
FOLLOWING THE DETERMINATION DATE (OR, IN THE CASE OF A PURCHASE PURSUANT TO
SECTION 5(B), NO LATER THAN 10 BUSINESS DAYS FOLLOWING THE COMPANY'S RECEIPT OF
WRITTEN NOTICE FROM THE EMPLOYEE PURSUANT TO SECTION 5(B)).
AT THE CLOSING,
(I) THE COMPANY OR THE CD&R INVESTORS, AS THE CASE MAY BE, SHALL, SUBJECT TO
SECTION 5(E), PAY THE PURCHASE PRICE TO THE EMPLOYEE AND (II) IF THE EMPLOYEE
ACTUALLY HOLDS ANY CERTIFICATES OR OTHER INSTRUMENTS REPRESENTING THE SHARES SO
PURCHASED, THE EMPLOYEE SHALL DELIVER TO THE COMPANY SUCH CERTIFICATES OR OTHER
INSTRUMENTS, APPROPRIATELY ENDORSED