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EXHIBIT 10.27
AGREEMENT REGARDING RESTRICTION OF
SHARES OF CMI INDUSTRIES, INC. COMMON STOCK
As a condition to the sale and issuance of 5,000 shares (the "Shares")
of the $1.00 par value common stock (the Common Stock") of CMI Industries, Inc.,
a Delaware corporation ("CMI" or the "Corporation"), to the undersigned, the
undersigned hereby acknowledges and agrees as follows:
1. Investment Representation. The undersigned represents that the
undersigned is not acquiring the Shares with a view to, or for resale in
connection with, the distribution of the Shares, and has no present
intention of distributing or reselling any of the Shares. The undersigned
acknowledges that the certificate or certificates representing the Shares
shall bear the legend specified in Article 7 of the Amended and Restated
Stockholders Agreement dated February 14, 1992 among CMI and its
stockholders, as amended (the "Stockholders Agreement"), that the Shares
are not registered under the Securities Act of 1933, as amended (the
"Act"), or under any applicable state securities statute, that the
undersigned may not transfer or otherwise dispose of any of the Shares
except in a transaction which is registered under the Act and any
applicable state securities statute or exempt from registration thereunder,
and that CMI may require an opinion of counsel to the effect that such
transfer is so registered or exempt. The undersigned acknowledges that
except as expressly set forth in the Stockholders Agreement, CMI is under
no obligation to register the Shares or take any action necessary in order
to make compliance with an exemption from registration available. The
undersigned has received no public solicitation or advertisement concerning
an offer to sell the Shares. The undersigned is the President and Chief
Executive Officer of CMI and has the opportunity to seek information about
CMI and the Shares for verification purposes.
2. Stockholders Agreement. The undersigned agrees that the ownership by
the undersigned of the Shares shall be subject to all of the terms and
conditions of, and that the undersigned shall comply with the provisions
of, the Stockholders Agreement, a copy of which have previously been
furnished to the undersigned, as fully as if the undersigned were a
signatory thereto as a "Management Investor" thereunder. All of the
restrictions on transfer, voting and other obligations contained therein
shall apply fully to the undersigned with respect to the Shares even though
the undersigned is not a party thereto. Notwithstanding the foregoing, (x)
any transfer of Shares pursuant hereto shall be deemed to be a transfer
under the Management Subscription Agreement permitted by Section
4.2(a)(iii) of the Stockholders Agreement; and (y) the pledge of the Shares
to CMI pursuant to the Pledge Agreement of near or even date herewith shall
be deemed to be a pledge permitted by Section 4.2(a)(ix) of the
Stockholders Agreement.
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3. Put-Call Rights.
a. Termination of Employment other than Upon Death,
Disability or Retirement.
(i) If, prior to a Public Offering of the Common Stock,
the undersigned's employment with the Corporation or a
subsidiary thereof is terminated by the Corporation or such
subsidiary for Cause or without Cause or by the undersigned,
other than upon the undersigned's death, disability (as
determined under the Corporation's disability policies in
effect at such time), or retirement at or after obtaining the
age of 65, the Corporation shall have the option, for a period
of 90 calendar days after the date of termination of
employment, to purchase all or any portion of the Shares owned
by the undersigned. The Corporation may exercise such right by
giving notice thereof to the undersigned prior to the
expiration of such 90-day period. The purchase price for the
Shares shall be the fair market value of such Shares
determined as of the date of termination of employment, as
agreed upon by the undersigned and the Corporation; provided,
that, in the event that the undersigned and the Corporation
cannot agree on such fair market value, a mutually agreed upon
third party shall make the final determination thereof ("Fair
Market Value"). "Public Offering" is defined in the
Stockholders Agreement.
(ii) If, prior to a Public Offering of the Common Stock,
the undersigned's employment with the Corporation or any
subsidiary thereof is terminated for any reason other than for
Cause or the undersigned's resignation, and the Corporation
shall not have exercised its 90-day option to purchase all of
the Option Shares as provided in paragraph 3a(i) above, the
undersigned shall have the option, for a period of 90 calendar
days, commencing at the end of the Corporation's 90-day option
period, to sell to the Corporation all or any portion of the
Shares then owned by the undersigned. The undersigned may
exercise such option by giving notice thereof to the
Corporation prior to the expiration of the undersigned's
90-day option period. The purchase price for the Shares shall
be the Fair Market Value of such Shares.
b. Death, Disability or Retirement.
(iii) If, prior to a Public Offering of the Common Stock,
the undersigned dies while in the employ of the Corporation or
any subsidiary thereof, or the undersigned's employment with
the Corporation or any subsidiary thereof is terminated
because of the undersigned's disability or retirement at or
after obtaining the age of 65, the Corporation shall have the
option, for a period of 90 calendar days
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after the date of death or determination of disability or
retirement, as applicable, to purchase all or any portion of
the Shares owned by theundersigned or the undersigned's legal
representative. The Corporation may exercise such Option by
giving notice thereof to the undersigned or the undersigned's
legal representative prior to the expiration of such 90-day
period. The purchase price for the Shares shall be the Fair
Market Value thereof.
(iv) If, prior to a Public Offering of the Common Stock,
the Corporation has not exercised its 90-day option under
paragraph 3b(i) upon the death, disability or retirement of
the undersigned, the undersigned or the undersigned's legal
representative shall have the option, for a period of 90
calendar days (180 calendar days in the case of termination
due to the undersigned's death), commencing at the end of the
Corporation's 90-day option period, to sell to the Corporation
all or any portion of the Shares then owned by the undersigned
or the undersigned's legal representative. The undersigned or
his legal successor may exercise such Option by giving notice
to the Corporation prior to the expiration of the
undersigned's 90-day option period. The purchase price for
such Shares shall be the Fair Market Value thereof.
c. Election, Delivery and Payment Procedures.
(v) Upon any exercise by the Corporation or the
undersigned or the undersigned's legal representative of an
option granted in this paragraph 3, the Corporation shall pay
the purchase price in cash.
(vi) The closing of any exercise of an option granted in
this paragraph 3 shall take place at the offices of the
Corporation not less than 15 nor more than 30 days after the
date such option is exercised or, if the undersigned and the
Corporation cannot reach agreement on fair market value, not
less than 15 nor more than 30 days after such determination is
made by the mutually agreed upon third party. The exact date
and time of closing shall be specified by the party exercising
such option.
(vii) If the Corporation shall have the option to purchase
Shares from the undersigned pursuant to this paragraph 3, it
shall specify to the undersigned in reasonable detail its
calculation of Fair Market Value for the purchase price (A) at
the time of its exercise of its option or, (B) if the
undersigned or the undersigned's legal representative will
have an option to sell pursuant to paragraph 3, prior to the
commencement of the undersigned's 90-day option period.
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(viii) At the closing of any exercise of any option granted
pursuant to paragraph 3, the undersigned shall deliver
certificates for the Shares to the Corporation duly endorsed
or accompanied by written instruments of transfer in form
satisfactory to the Corporation, duly executed by the
undersigned, and freeand clear of any liens, against payment
by the Corporation of the purchase price therefor.
(ix) Notwithstanding the provisions contained in this
paragraph 3, the Corporation shall not be obligated to
purchase any Shares, and Optionee shall have no right to sell
such Shares, except to the extent the Corporation shall be
permitted to repurchase its shares under applicable law and
any applicable financing agreements of the Corporation.
4. Miscellaneous.This Agreement is binding upon and inures to the benefit
of the parties hereto and their respective successors and assigns.
References to a party to this Agreement are also references to any
successor or assign of such party. Whenever the context so requires, the
singular number includes the plural, the plural includes the singular, and
the gender of any pronoun includes the other genders. Titles and captions
of or in this Agreement are inserted only as a matter of convenience and
for reference and in no way affect the scope of this Agreement or the
intent of its provisions. This Agreement constitutes the entire agreement
of the parties to it with respect to its subject matter, supersedes all
prior agreements, if any, of the parties to this Agreement with respect to
its subject matter, and may not be amended except in writing signed by the
party to this Agreement against whom the change is being asserted. In
addition, the agreements of the undersigned in paragraph 2 above inure to
the benefit of the other parties to the Stockholders Agreement. The failure
of any party to this Agreement at any time or times to require the
performance of any provisions of this Agreement shall in no manner affect
the right to enforce the same; and no waiver by any party to this Agreement
of any provision (or of a breach of any provision) of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be
deemed or construed either as a further or continuing waiver of any such
provision or breach or as a waiver of any other provision (or of a breach
of any other provision) of this Agreement. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of
Delaware. This Agreement may be executed in two or more copies, each of
which shall be deemed an original, and it shall not be necessary in making
proof of this Agreement or its terms to produce or account for more than
one of such copies.
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DULY EXECUTED by the undersigned this ___ day of ___________,
1997 as of October 21, 1997.
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Xxxxxx X. Xxxxx
Accepted and agreed to.
CMI INDUSTRIES, INC.
By:
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Title:
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