Exhibit 4.10
RESTRICTED STOCK PURCHASE AGREEMENT
(XXXXXX XXXXXX)
This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is dated
as of [March 31, 2004], by and between CHIEF MANUFACTURING HOLDING CORP., a
Delaware corporation (the "Company"), and XXXXXX XXXXXX (the "Stockholder").
WHEREAS, the Company wishes to sell and the Stockholder wishes to buy
certain shares of the Company's Class B Common Stock (as defined in Section 1
hereof) on the terms and subject to the restrictions contained in this
Agreement; and
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the Company and the Stockholder agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
meanings specified below:
"Affiliate" has the meaning specified in the Stockholder Agreement.
"Act" has the meaning specified in Section 5(a) hereof.
"Board" means the Board of Directors of the Company.
"Cause" means anything constituting "Cause" for termination under the
Employment Agreement.
"Class A Common Stock," the Company's Class A Voting Common Stock,
$0.001 par value per share.
"Class B Common Stock" means the Company's Class B Non-Voting Common
Stock, $0.001 par value per share.
"Class C Common Stock" means the Company's Class C Voting Common
Stock, $0.001 par value per share.
"Common Equity Value" means, as of any date, the fair market value (as
determined by an Independent Appraiser pursuant to Section 3.3 hereof) of the
entire common stock equity of the Company (without premium for control or
discounts for minority interests, restrictions on transfer or lack of voting
rights or other premiums or discounts that would be applicable if less than all
of the common stock equity is sold in a single transaction), calculated as of
such date, plus the aggregate consideration to be paid to the Company upon the
exercise of all then outstanding and exercisable warrants, options or
convertible securities pursuant to which the Company is then obligated to issue
shares of Common Stock (excluding any options or warrants for which the exercise
price per share exceeds the Market Value Per Share of a share of Common Stock as
of such date).
February 11, 2004 2
"Common Stock" means the Class A Common Stock, the Class B Common
Stock and the Class C Common Stock, and any capital stock of the Company which
is (a) not preferred as to dividends or assets over any class of stock of the
Company, (b) not subject to redemption and (c) issued to the holders of Common
Stock upon any reclassification thereof.
"Company" has the meaning specified in the preamble hereto.
"Delayed Closing Date" has the meaning specified in Section 7.2
hereof.
"Disability" has the meaning specified in the Employment Agreement.
"Disposition Event" means (a) (i) the sale of all or substantially all
of the assets of the Company or its Subsidiaries in a single transaction or
series of related transactions whether by liquidation, dissolution, merger,
consolidation or sale or (ii) the sale or other transfer of at least 51% of the
outstanding shares of Common Stock in single transaction or a series of related
transactions, in either case to any Person who is not an Affiliate of the
Company, or of a stockholder thereof, immediately prior to such transaction or
transactions, or (b) the effective time of any merger, share exchange,
consolidation, or other business combination of the Company if immediately after
such transaction Persons who hold a majority of the outstanding voting
securities entitled to vote generally in the election of directors of the
surviving entity (or the entity owning 100% of such surviving entity) are not
Person who, immediately prior to such transactions held the securities of the
Company entitled to vote generally in the election of directors.
"Disposition Proceeds" means (i) in the case of a merger or any other
stock transaction, (A) the average price per share received by the holders of
Common stock or by the Company or its Subsidiaries in connection with such
transaction, multiplied by (B) the sum of (x) the total number of shares of
Common Stock then outstanding, plus (y) the total number of shares of Common
Stock issuable upon exercise or conversion of any then outstanding and
exercisable warrants, options or convertible securities pursuant to which the
Company is then obligated to issue shares of Common Stock, or (ii) in the case
of any liquidation or sale of assets (including, without limitation, the sale by
the Company of the capital stock of its Subsidiaries), the Net Worth of the
Common Stock of the Company immediately prior to such liquidation or immediately
after such sale.
"Employment Agreement" means the Employment and Non-Competition
Agreement, dated as of [March 31, 2004], between Chief Manufacturing Inc., a
Massachusetts corporation, and the Stockholder.
"Good Reason" has the meaning specified in the Employment Agreement.
"Independent Appraiser" means an independent investment banking firm,
accounting firm or appraiser of nationally recognised standing.
"Market Value Per Share" means, with respect to any date, for any
share of Common Stock, (i) the Common Equity Value as of such date, divided by
(ii) the sum of (x) the total number of shares of Common Stock then outstanding,
plus (y) the total number of shares of
February 11, 2004 3
Common Stock issuable upon exercise or conversion of any outstanding and
exercisable warrants, options or convertible, securities pursuant to which the
Company is then obligated to issue shares of Common Stock (excluding any options
or warrants for which the exercise price per share exceeds the Market Value Per
Share of a share of Common Stock as of such date).
"Net Worth" means, in connection with any liquidation or sale of
assets by the Company, the consolidated net worth of the Common Stock of the
Company and its Subsidiaries determined in accordance with generally accepted
accounting principles, taking into account (i) the total consideration received
by the Company for such transaction (including, without limitation, payment of
the liquidation value and accrued dividends on any Preferred Stock of the
Company).
"Note" has the meaning specified in Section 2(a) hereof.
"Original Price Per Share" means $1.00 pear Share for each share of
Class B Common Stock.
"Person" an individual, partnership, limited liability company,
corporation, association, trust, joint venture, incorporated organization, or
any government, governmental department or agency or political subdivision
thereof.
"Plan" means the Company's 2003 Equity Incentive Plan attached hereto
as Exhibit A.
"Preferred Stock" means the Series A Preferred Stock and any capital
stock of the Company which is (a) preferred as to dividends or assets over any
other class of stock of the Company, (b) subject to redemption or (c) issued to
the holders of shares of Preferred Stock upon any reclassification thereof.
"Public Sale" means the Company's initial public offering of Common
Stock.
"Purchase Price" has the meaning specified in Section 2(a) hereof.
"Purchased Shares" has the meaning specified in Section 2(a) hereof.
"Repurchase Notice" has the meaning assigned to such term in Section
3.3 hereof.
"Series A Preferred Stock" means the Company's Series A participating
Preferred Stock, $0.001 par value per share.
"Shares" means (a) the Purchased Shares purchased by the Stockholder
pursuant to Section 2(a) of this Agreement and (b) all shares of the Company's
capital stock issued with respect to the Purchased Shares by way of dividend or
stock split or in connection with any merger, consolidation, recapitalization or
reorganization affecting the Company's capital stock.
"Stockholder" has the meaning specified in the introductory paragraph
hereof.
February 11, 2004 4
"Stockholder Agreement" means the Stockholder Agreement dated as of
August 29, 2003, among the Company and its stockholders, as amended and in
effect from time to time.
"Subsidiary" means, with respect to the company, and corporation, a
majority (by number of votes) of the outstanding shares of any class or classes
of which shall at the time be owned by the Company or by a Subsidiary of the
Company, if the holders of the shares of such class or classes (a) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the directors (or persons performing similar functions) of the
issuer thereof, even though the right so to vote has been suspended by the
happening of such a contigency, or (b) are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the issuer thereof, whether or not the right so
to vote exists by reason of the happening of a contingency.
"Target Amount" means $60,000,000; provided, that if the Company
enters into any extraordinary transaction, such as a business acquisition or
disposition, the Board in the exercise of its business judgement may adjust
upward or downward the Target Amount to take into account such extraordinary
transaction.
"Target Disposition Event" means a Disposition Event in which the
Disposition Proceeds equal or exceed the Target Amount.
"Termination of Employment" means the termination of the Stockholder's
employment with the Company or any of its Subsidiaries for any reason,
including, without limitation, for resignation, death or Disability of the
Stockholder, and whether or not for Cause.
"Transfer" has the meaning specified in Section 4 hereof.
"Unvested Shares" has the meaning specified in Section 3.1 hereof.
"Vested Shares" has the meaning specified in Section 3.1 hereof.
2. PURCHASE AND SALE OF SHARES. (a) Subject to (i) the terms and
conditions hereinafter set forth and in reliance on the representations and
warranties contained herein, and (ii) the Company's receipt of any and all
necessary consents, authorizations and approvals of the transactions
contemplated Agreement, the Company hereby agrees to issue and sell to the
Stockholder and the Stockholder hereby agrees to purchase from the Company, on
the date hereof 150,000 shares of Class B Common Stock (the "Purchased Shares"),
which will be evidenced by stock certificate number ___. The aggregate purchase
price paid by the Stockholder for the Shares will be $150,000 (the "Purchase
Price"). On the date hereof (A) the full amount of the Purchase Price will be
paid to the Company by delivery of the Stockholder's promissory note to the
Company in the aggregate principal amount of the Purchase Price and in the form
of Exhibit B hereto (the "Note"), (B) the Company shall deliver to the
Stockholder a certificate or certificate representing the Purchased Shares (each
such certificates to bear the legends set forth in Section 6 hereof) and (C) the
Stockholder will deliver to and pledge the Purchased Shares to the Company
pursuant to the terms of the Note, together with stock powers or other
appropriate instruments of assignment thereof duly executed in blank by the
Stockholder.
February 11, 2004 5
(b) The Company represents and warrants that, after giving effect to
the purchase and sale effected hereby, (i) the authorized capital of the Company
consists of (A) 36,485 shares of Series A Preferred Stock, 36,485 shares of
which are issued and outstanding on the date hereof, (B) 30,000,000 shares of
Class A Common Stock, no shares of which are issued and outstanding on the date
hereof, (C) 10,000,000 shares of Class B Common Stock, 4,600,000 shares of which
are issued and outstanding on the date hereof, and (D) 10,000,000 shares of
Class C Common Stocks, 4,300,000 shares of which are issued and outstanding on
the date hereof, (ii) all such outstanding capital stock (other than the Shares)
is owned as set forth on Schedule 1 hereto and is validly issued and
outstanding, fully paid and non-assessable and (iii) there are no commitments
for the purchase or sale of, and no options, warrants or other rights to
subscribe for any purchase, any securities of the Company other than as set
forth on Schedule 1 hereto.
3. REPURCHASE OF SHARES.
3.1. VESTING OF SHARES. On and after the date hereof, the terms of any
repurchase of any Shares shall differ depending on whether such Shares are
"Unvested Shares" or "Vested Shares". Initially, 20% of the Shares shall be
considered "Vested Shares" and all other Shares shall be considered "Unvested
Shares". On each anniversary of [March 31, 2004] prior to the termination of
Employment, commencing with [March 31, 2005], 20% of the original number of
Shares shall become "Vested Shares", such that all of the Shares shall be Vested
Shares as of and after [March 31, 2008] if the Termination of Employment does
not occur prior to such date. If a Target Disposition Event or a Public Sale
occurs prior to a Termination of Employment (the first such event or sale, a
"Vesting Acceleration Event"), (a) 50% of the then Unvested Shares shall become
Vested Shares upon the occurence of such Vesting Acceleration Event (the
Unvested Shares that become vested upon the occurence of such Vesting
Acceleration Event shall consist of the Unvested Shares that were scheduled to
vest first chronologically following such Vested Acceleration Event) and (b) the
remaining 50% of the then Unvested Shares shall become Vested Shares on the
earlier of (i) the date that such Unvested Shares are scheduled to vest under
this Agreement and (ii) the first anniversary date of the occurence of such
Vesting Acceleration Event (such earlier date, the "Final Vesting Date"),
provided that a Termination of Employment has not occured for Cause or by
resignation on or prior to the Final Vesting Date. Except pursuant to clause (b)
of the immediately preceding sentence, no Shares which have not already become
Vested Shares shall become Vested Shares upon or after the Termination of
Employment for any reason.
3.2. REPURCHASE RIGHTS OF THE COMPANY. Upon the Termination of
Employment at any time and for any reason, the Company shall have the right to
repurchase from the Stockholder, and the Stockholder will at the request of the
Company sell to the Company all (but not less than all) of the Shares at a
purchase price per Share determined pursuant to paragraphs (a) and (b) below:
(a) in the event that such Termination of Employment is for Cause
at any time, or is a result of the Stockholder's resignation (other
than for Good Reason) prior to the fourth anniversary of the date
hereof, at a purchase price per
February 11, 2004 6
Share equal to the Original Price Per Share plus interest on such
amount from the date hereof to the date of repurchase at the rate of
5% per annum; and
(b) otherwise, (i) at a purchase price per Vested Share equal to
the Market value Per Share and (ii) at a purchase price per Unvested
Share equal to the Original Price Per Share plus interest on such
amount from the date hereof to the date of repurchase at the rate of
5% per annum.
3.3. REPURCHASE CLOSING. The Company's repurchase rights under Section
3.2 shall be exercisable at any time within ninety (90) days following the
Termination of Employment by notice to the Stockholder (the "Repurchase
Notice"). The closing of the repurchase of such Shares shall be held (a) not
earlier than five (5) days nor later than thirty (30) days after delivery of the
Repurchase Notice if such Termination of Employment is for Cause or is the
result of the Stockholder's resignation (other than for Good Reason) prior to
the fourth anniversary of the date hereof or (b) otherwise, not earlier than
five (5) days nor later than thirty (30) days after determination of the Common
Equity Value pursuant to Section 3.4. The Company's repurchase rights under
Section 3.2 shall lapse if not exercised within the time periods (if any)
specified above in accordance with the provisions hereof, except as otherwise
provided in Section 7 hereof. Amounts due from the Company to the Stockholder
under this Section 3.3 shall be set off in payment of any amounts payable from
the Stockholder to the Company under the Note. Upon delivery by the Company of
the repurchase price for the Shares being repurchased hereunder in accordance
with Section 8 hereof, all of the Shares being repurchased shall no longer be
deemed to be outstanding, all of the Stockholder's rights with respect to such
Shares shall terminate with the exception of the right of the Stockholder to
receive the repurchase price in exchange therefor pursuant to this Section 3.3,
and the Stockholder hereby appoints the Company as his attorney-in-fact to take
all actions necessary and sign all documents required to cancel such Shares on
its books and records.
3.4. APPRAISAL. Within fifteen (15) days following his receipt of a
Repurchase Notice from the Company in respect of a repurchase of the Shares
pursuant to Section 3.2(b) hereof, the Stockholder shall select three (3)
Independent Appraisers that the Stockholder purposes to determine the Common
Equity Value for purposes of this Agreement and shall notify the Company in
writing of such selection (the "Stockholder Appraiser Notice"). The Company
shall select one (1) of the Independent Appraisers listed in the Stockholder
Appraiser Notice and use reasonable commercial efforts to promptly engage, at
the cost and expense of the company, such Independent Appraiser to determine the
Common Equity Value for purposes of this Agreement. The terms of such engagement
shall provide that the Independent Appraiser shall complete its determination of
the Common Equity Value within 45 days of engagement by the Company. The Company
shall not be required to select any Independent Appraiser from a Stockholder
Appraiser Notice unless the Stockholder Appraiser Notice includes three (3)
Independent Appraisers. If the Stockholder has not provided a Stockholder
Appraiser Notice which complies with the requirements of this Section 3.4 within
thirty (30) days following the Stockholder's receipt of the Repurchase Notice,
the Board shall in good faith select an Independent Appraiser to determine the
Common Equity Value, Any determination of the Common Equity Value by an
Independent Appraiser pursuant to this Section 3.4 shall be final, conclusive
and binding upon the parties.
February 11, 2004 7
4. RESTRICTIONS ON TRANSFER. The Stockholder may not sell, assign,
transfer, pledge or otherwise dispose of ("Transfer") any of the Unvested
Shares, either voluntarily or involuntarily or by operation of law, except to
the Company or any of its Subsidiaries. Except as otherwise expressly provided
in the Stockholder Agreement, the Stockholder may not Transfer any of the Vested
Shares, either voluntarily or involuntarily or by operation of law, except to
the Company or any of its Subsidiaries. On and after the time the Company
completes a Public Sale, all of the restrictions on Transfer and the repurchase
rights of the Company contained herein (including, without limitation, the
repurchase rights of the Company pursuant to Section 3 hereof), shall cease to
apply to any Shares that constitute Vested Shares at such time and to any Shares
that become Vested Shares after such time pursuant to the terms hereof. On and
after the completion of a Target Disposition Event, all of the repurchase rights
of the Company contained herein (including, without limitation, the repurchase
rights of the Company pursuant to Section 3 hereof), shall cease to apply to any
Shares that constitute Vested Shares at such time and to any Shares that become
Vested Shares after such time pursuant to the terms hereof. Under no
circumstances may the Stockholder Transfer any Shares in violation of the terms
of the Note. The Stockholder agrees to execute and deliver the Stockholder
Agreement simultaneously with the purchase of the Shares hereunder. Upon any
permitted Transfer of the Shares, the transferee of the Shares shall execute and
deliver to the Company an agreement containing repurchase provisions
substantially the same as those contained herein.
5. INVESTMENT REPRESENTATIONS. (a) The Stockholder represents that the
Shares are being acquired by him for his own account for investment and not with
a view to the distribution thereof. The Stockholder understands that the Shares
have not been registered under the Securities Act of 1933, as amended (the
"Act"), on the grounds that the offer and sale of the Shares to him are exempt
from the registration requirements of the Act under Section 4(2) thereof as a
transaction not involving any public offering of the Shares. The Stockholder
understands that the Company's reliance on such exemption is predicated in part
on the representations of the Stockholder which are contained herein.
(b) The Stockholder understands that he must bear the economic risk of
his investment in the Act and, therefore, cannot be sold unless they are
subsequently registered under the Act or an exemption from such registration is
available. The Stockholder agrees that he will not offer to Transfer any of the
Shares except as expressly permitted by this Agreement and then only after the
Company has received an opinion of its counsel that such offer or Transfer is
not in violation of the registration requirements of the Act or other applicable
law.
(c) The Stockholder represents that he is an "accredited investor" (as
defined in Rule 501 under the Act) and a resident of the State of ________
6. LEGENDS; STOP TRANSFER. (a) Each certificate representing the
Shares shall bear legends in or substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO TRANSFER, SALE OR
OTHER DISPOSITION OF THESE SHARES
February 11, 2004 8
MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THESE
SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR THE COMPANY HAS BEEN
FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE ALSO SUBJECT TO CERTAIN
REPURCHASE RIGHTS IN FAVOR OF THE COMPANY AND CERTAIN PROVISIONS
REGARDING RESTRICTIONS UPON TRANSFER CONTAINED IN A RESTRICTED STOCK
PURCHASE AGREEMENT, DATED AS OF [MARCH 31, 2004], COPIES OF WHICH WILL
BE FURNISHED BY THE COMPANY TO THE HOLDER OF THE SHARES EVIDENCED BY
THIS CERTIFICATE UPON WRITTEN REQUEST AND WITHOUT CHARGE."
(b) In addition, the Company shall make a notation regarding the
restrictions on transfer of the Shares in the stocks books of the Company, and
such Shares shall be transferred on the books of the Company only if and when
transferred or sold in compliance with all of the terms and conditions of this
Agreement.
7. REPURCHASE RESTRICTIONS.
7.1 CONTRACTUAL RESTRICTIONS ON REPURCHASE. Notwithstanding any
provision to the contrary in Section 3, if the repurchase price for any Shares
to be repurchased hereunder exceeds amounts owed under the Note so that after
setting off payments due to the Stockholder hereunder against such amounts, the
Company remains obligated to make payments to the Stockholder hereunder, and the
terms of any of the financing agreements of the Company or its Subsidiaries with
their lenders prohibit the Company from making such payments in cash, the
Company shall be entitled to complete the repurchase of such Shares by
delivering to the Stockholder (or any transferee) a promissory note for that
portion of such payment which exceeds any amounts already set off against the
Note. Each such promissory note shall (i) bear interest at the rate of five
percent (5%) per annum, (ii) provide for the payment of the principal evidenced
thereby in such installments and at such, times as are permitted under the terms
of the Company's and its Subsidiaries' financing agreements with their lenders,
(iii) be subordinated to the indebtedness of the Company and its Subsidiaries to
their lenders on terms satisfactory to such leaders and (iv) subject to such
payment restrictions and subordination provisions, provide for the payment in
full of the principal evidenced thereby upon the sale of substantially all of
the assets or stock of the Company.
7.2. IMPAIRMENT OF CAPITAL. If even after giving effect to the
provisions of Section 7.1 hereof, the Company is prohibited by the terms of any
of the financing agreements of the Company or any of its Subsidiaries with their
leaders from issuing a promissory note for the balance of the repurchase price
as contemplated by Section 7.1 or is prohibited by law from repurchasing any
Shares which it is obligated or has elected to repurchase hereunder due to any
existing or prospective impairment of its capital, the closing of such
repurchase shall be delayed until the first date on which the Company is
permitted by the terms of any such financing agreements to repurchase such
Shares and has sufficient capital to lawfully repurchase such
February 11, 2004 9
Shares (the "Delayed Closing Date"). In the event of any such delay, (i) the
Company will be obligated to pay, on the Delayed Closing Date, interest on the
repurchase price for such shares, at the rate of five percent (5%) per annum
from the date on which the closing of the repurchase of such shares was
originally scheduled to occur to the Delayed Closing Date, and (ii) the
Stockholder shall remain bound by the restrictions on Transfer contained herein
during such delay; provided that the company shall not be required to issue a
promissory note to evidence its payment obligation to the extent such issuance
is prohibited by the terms of any such financing agreements.
8. PAYMENT FOR SHARES. At any closing held to consummate any
repurchase of the Shares hereunder, the Stockholder shall deliver to the Company
the stock certificates representing such Shares duly endorsed in blank or with
duly executed stock powers attached, and the Company shall (i) offset the
repurchase price for such Shares against any amounts owed by the Stockholder to
the Company under the Note and (ii) deliver to the Stockholder a check in the
amount of any remaining balance of the repurchase price or a promissory note as
provided in section 7.1
9. ADJUSTMENT OF REPURCHASE PRICE. Upon any stock split, reverse stock
split, recombination of shares or other similar reorganization of the capital
structure of the Company, the repurchase price otherwise payable to the
stockholder upon the repurchase of the Company, the repurchase price otherwise
payable to the stockholder upon the repurchase of any Shares pursuant to Section
3 hereof shall be proportionally adjusted, to reflect such reorganization.
10. GENERAL.
10.1. NOTICES. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid or if sent by overnight courier, or sent by
written telecommunication, as follows:
If to the Company, to;
Chief Manufacturing Holding Corp.
c/x Xxxxxxxx Xxxxxxxxx & Xxxx LLC
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000)000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
With copies sent simultaneously to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
February 11, 2004 10
If to the Stockholder, to:
Xxxxxx Xxxxxx
______________________________
______________________________
Any such notice shall be effective (a) if delivered personally, when
received, (b) if seat by oversight courier, when receipted for, (c) if mailed,
three (3) days after being mailed as described above, and (d) if sent by written
telecommunication, when dispatched.
10.2. EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
agrees that upon any breach by the Stockholder of this obligation under Sections
3, 4, or 8 hereof, the Company will have no adequate remedy at law, and
accordingly will be entitled to specific performance and other appropriate
injunctive and, equitable relief.
10.3. SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired.
10.4. WAIVERS. No delay or omission by either party hereto in
exercising any right, power or privilege hereunder shall impair such right,
power or privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
10.5. COUNTERPARTS. This Agreement may be executed in multiple
counterparts (including by facsimile), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
10.6. ASSIGNS. This Agreement shall not be assignable or transferable
by the Stockholder without the Company's prior written, consent thereto.
10.7. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof and shall not be amended except by a
written instrument hereafter signed by each of the parties hereto. Nothing in
this Agreement shall be construed as a grant to the Stockholder of any right to
continuing employment with the Company or any Subsidiary or to restrict in any
way the right to terminate the Stockholder's employment at any time.
10.8. GOVERNING LAW. This Agreement and the obligations of the parties
hereunder shall be deemed to be a contract under seal and shall for all purpose
be governed by and construed in accordance with the internal laws of The
Commonwealth of Massachusetts without reference to principles of conflicts of
law.
11. SECTION 83(b) ELECTION. The Stockholder and the Company
acknowledge that the Stockholder will make an election, in accordance with
Section 83(b) of the Internal Revenue Code of 1986, as amended. The Stockholder
and the Company agree that the
February 11, 2004 11
fair market value of the Shares is equal to the aggregate Original Purchase
Price Per Share of the Shares, and shall reflect such fair market value to the
extent required on any federal, state or local income tax return or filing. The
Stockholder further agrees that he will file a Section 83(b) election form with
the Internal Revenue Service within thirty (30 days after the date hereof.
12. INCORPORATION OF PLAN TERMS. The sale of the Shares to the
Stockholders pursuant to this Agreement is subject to all of the applicable
terms of the plan, including, but not limited to, Section 9 (Settlement of
Awards)
[Remainder of page intentionally left blank; signature page follows]
February 11, 2004 12
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed as of the date and
year first above written.
THE COMPANY CHIEF MANUFACTURING HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THE STOCKHOLDER:
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
