Provision Language
6. Withdrawal Rights
(a) A “Charitability Default” will occur if the Company either (i) fails to comply with the restrictions in Sections 1(c) and 9 of this Letter Agreement on the use of funds from the Foundation Investment, (ii) fails to comply with the other related U.S. legal obligations set forth in this Letter Agreement, including the requirements set forth in Sections 7, 8, 11, and 11 below, or (iii) is in material breach of the Global Access Commitments (for the avoidance of doubt the parties agree that a breach of the Global Access Commitments that tax counsel selected by the Foundation determines is more likely than not to result in the Foundation Investment failing to qualify as a “program related investment” under the Code will constitute a material breach of the Global Access Commitments). Each party agrees to promptly notify the other party in writing if it becomes aware of any Charitability Default. Notwithstanding anything in this Agreement to the contrary, the Foundation will not lose any rights or remedies solely as a result of a failure to notify the Company after it becomes aware of a Charitability Default.
(b) If the Company commits a Charitability Default and fails to remedy it within ninety (90) days of receipt of the above described notice, then, in addition to all other rights and remedies available at law or in equity, at any time following the cure period set forth above in this Section 6(b), the Foundation will have the right to request that the Company proceed with one of the following (the “Withdrawal Rights”):
(i) redeem all of the then-held Foundation Stock at a price per share equal to the greater of (x) the Minimum Purchase Price or (y) the Fair Market Value, provided that such redemption shall be made only to the extent permitted by applicable law concerning distributions to holders of equity interests,
(ii) facilitate the purchase of the then-held Foundation Stock by a third party at a price per share equal to the greater of (x) the Minimum Purchase Price or (y) the Fair Market Value in a transaction that complies with applicable law, or
(iii) solely in the event the Common Stock is not Freely Tradable at the time, the Company may elect to register the resale of the then-held Foundation Stock on an effective registration statement filed under the Securities Act with the SEC and keep the registration statement continuously effective under the Securities Act until the earlier of (x) the date all of the Foundation Stock has been sold or (y) the date that is 2 years following the effective date of the registration statement.
If the Company elects to satisfy the Withdrawal Right pursuant to Section 6(b)(iii) and the Foundation receives less than the Minimum Purchase Price per share for any of the Foundation Stock sold, then the Company will pay the Foundation as soon as practicable the difference between the price received by the Foundation and the Minimum Purchase Price.
(c) If the Company is unable to redeem all of the then-held Foundation Stock under Section 6(b)(i) because it is prohibited from doing so under applicable law concerning distributions to holders of equity interests, and the Company is not able to provide the Withdrawal Right pursuant to Section 6(b)(ii) or 6(b)(iii), then the Company shall redeem as much of the FoundationStock as is legally permissible and continuously use its best efforts to effect the Withdrawal Rights, consistent with applicable law, until such time as the Foundation and its Affiliates no longer hold any Foundation Stock.
(d) Except as otherwise provided in the Transaction Documents, the Company’s obligations and the Foundation’s rights under the Transaction Documents, including the Global Access Commitments, will survive following the Foundation’s complete divestiture, whether via Withdrawal Rights and/or other sale or transfer, of the Foundation Stock.
(e) The Company shall pay all fees and expenses incident to the performance of or compliance with theFoundation’s exercise of its Withdrawal Rights.