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EXHIBIT 10.7
EXECUTION COPY
MANAGEMENT STOCK AGREEMENT
This MANAGEMENT STOCK AGREEMENT is dated as of November 30, 1999, by and
among X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation (the
"Company"), the individuals whose signatures appear on the signature pages
hereto (collectively, the "Purchasers" and each individually, a "Purchaser")
and Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P., a Delaware limited partnership
("BRS"). Capitalized terms used but not otherwise defined herein shall have
the meaning ascribed to such terms in Section 1.
WHEREAS, each Purchaser acquired beneficial ownership of (x) the number of
shares of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"), and (y) the number of shares of the Junior Preferred Stock (as defined
below), in each case set forth opposite such Purchaser's name on the attached
Schedule 1, in exchange for (i) shares of common stock or junior preferred
stock of OSI Acquisition, Inc., a Delaware corporation ("OSI"), pursuant to
Section 3.1 of that certain Agreement and Plan of Merger (as amended, restated
or modified from time to time, the "Merger Agreement") dated as of May 17,
1999, between the Company and OSI, and (ii) "Retained Shares" (as defined in
the Merger Agreement) pursuant to Section 3.2 thereof; and
WHEREAS, BRS acquired shares of Common Stock and shares of the Company's
Series B Junior Preferred Stock, par value $0.01 per share, upon the terms and
conditions set forth in the Merger Agreement on the understanding, among other
things, that the Company and the Purchasers enter into this Agreement. Certain
provisions of this Agreement are intended for the benefit of, and will be
enforceable by, BRS.
NOW, THEREFORE, in consideration of the mutual undertaking contained
herein, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"Board" means the board of directors of the Company.
"Cause" means (i) a material breach of this Agreement by the Executive,
(ii) a breach of the Executive's duty of loyalty to the Company and its
Subsidiaries, or (iii) Executive's commission of a crime involving an act of
moral turpitude or which constitutes a felony in the jurisdiction in which
Executive is employed, regardless of whether the crime involves the Company or
any of its Subsidiaries.
"Co-Invest Shares" for any Purchaser means the shares of Common Stock set
forth opposite such Purchaser's name on the attached Schedule 1 under the
heading "Co-Invest Shares."
"Executive" means any person whose name appears on the attached Schedule 1
and who is an officer or employee of the Company.
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"Executive Stock" with respect to any Executive means, collectively, (i)
all of the shares of Common Stock and Junior Preferred Stock set forth opposite
such Executive and such Executive's Related Parties' names, as applicable, on
the attached Schedule 1, (ii) all shares of Common Stock and Junior Preferred
Stock over which such Executive, its Related Parties ortheir respective
designees acquire beneficial ownership hereafter, and (iii) shares of the
Company's capital stock issued with respect to the shares of capital stock
referred to in paragraph (i) or (ii) by way of a split, dividend, combination,
exchange, recapitalization, merger, consolidation or other reorganization or
into or for which any such shares are converted or exchanged. With respect to
any Executive, Executive Stock will continue to be Executive Stock in the hands
of any holder or beneficial owner other than such Executive, including all of
such Executive's Related Parties and the transferees of such Executive and such
other Persons (except for the Company and BRS (or its designee)), and except as
otherwise provided herein, each such other holder of Executive Stock will
succeed to all rights and obligations attributable to the Executive as a holder
of Executive Stock hereunder. Executive Stock will cease to be Executive Stock
when transferred pursuant to a Public Sale.
"Fair Value" for any date of determination means (a) for each share of
Common Stock, (i) the average of the closing prices of the sales of the
Company's Common Stock on all securities exchanges on which the Common Stock
may at the time be listed, or, if there have been no sales on any such exchange
on such day, the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, (ii) if on any day the Common Stock is
not so listed, the average of the representative bid and asked prices quoted in
the Nasdaq National Market System ("Nasdaq NMS") as of 4:00 P.M., New York
time, or, (iii) if on any day the Common Stock is not quoted in the Nasdaq NMS,
the average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation Bureau
Incorporated, or any similar successor organization, in each such case averaged
over a period of 21 days consisting of the day as of which the Fair Value is
being determined and the 20 consecutive business days prior to such day, or
(iv) if at any time the Common Stock is not listed on any securities exchange
or quoted in the Nasdaq NMS or the over-the-counter market, the Fair Value of
each share of Common Stock shall be determined by the Board in its good faith
judgment; provided, that in the case of clause (iv), the Fair Value of each
share of Common Stock determined by the Board shall not be less than the value
attributed to such shares in the most recent written communication by BRS to
its limited partners, and (b) for each share of Junior Preferred Stock means
the liquidation value of such share plus all accumulated and accrued and unpaid
but not yet accumulated dividends thereon.
"IPO" means the sale of shares of Common Stock in an underwritten initial
public offering registered under the Securities Act where, after such offering,
the Common Stock sold in such offering is subject to being traded on the NASDAQ
National Market or a nationally recognized securities exchange.
"Junior Preferred Stock" means, collectively, (i) the Company's Series A
Junior Preferred Stock, par value $0.01 per share, and (ii) the Company's
Series B Junior Preferred Stock, par value $0.01 per share.
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"Original Cost" of each share of Common Stock will be equal to $1.00, as
proportionately adjusted for all subsequent stock splits, stock dividends and
other recapitalizations.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Promote Shares" for any Purchaser means the shares of Common Stock set
forth opposite such Purchaser's name on the attached Schedule 1 under the
heading "Promote Shares."
"Qualified Public Offering" means the sale, in an underwritten public
offering registered under the Securities Act, of shares of the Company's Common
Stock having an aggregate value (based upon the offering price of such
offering) of at least $30 million.
"Related Parties" with respect to any Executive means the Persons set
forth beneath such Executive's name on the attached Schedule 1.
"Sale of the Company" means the sale of the Company, in a single
transaction or a series of related transactions, to an Unaffiliated Third Party
pursuant to which such Unaffiliated Third Party acquires all of the outstanding
Common Stock (whether by merger, consolidation, recapitalization,
reorganization, purchase or otherwise) or all or substantially all of the
consolidated assets of the Company.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stockholders Agreement" means the Stockholders Agreement dated on even
date herewith by and among the Company, BRS, the Purchasers and the other
parties thereto, as amended, restated or modified from time to time.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation or limited liability company (with voting securities), a
majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, limited liability
company (without voting securities), association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a partnership, limited liability company, association or other
business entity if such Person or Persons shall be allocated a majority of
partnership, limited liability company, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such partnership, limited liability company, association or other business
entity.
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"TPA" for each Executive means the Termination Protection Agreement
between the Company and such Executive.
"Unaffiliated Third Party" means any Person who, immediately prior to the
contemplated transaction (i) does not own in excess of 5% of the Common Stock
on a fully diluted basis (a "5% Owner"), (ii) is not controlling, controlled by
or under common control with any such 5% Owner and (iii) is not the spouse or
descendent (by birth or adoption) of any such 5% Owner or a trust for the
benefit of such 5% Owner and/or such other Persons.
2. Vesting of Purchaser Stock.
(a) For purposes of this Agreement and with respect to each Purchaser, (i)
all of the Co-Invest Shares and all of the shares of Junior Preferred Stock set
forth opposite such Purchaser's name on the attached Schedule 1 will be deemed
to be fully vested as of the date hereof, and (ii) all of the Promote Shares
set forth opposite such Purchaser's name on the attached Schedule 1 will become
vested in accordance with the following schedule if, as of each such date, such
Purchaser is still employed by the Company or any of its Subsidiaries
Cumulative Percentage of Promote
Date Shares Which Will Vest
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first anniversary of the date hereof 20%
second anniversary of the date hereof 40%
third anniversary of the date hereof 60%
fourth anniversary of the date hereof 80%
fifth anniversary of the date hereof 100%
All of the shares of Common Stock which have become vested are referred to
herein as "Vested Common Shares," and all other shares of Common Stock are
referred to herein as "Unvested Common Shares."
(b) Notwithstanding anything contained in this Section 3 to the contrary,
with respect to each Executive who has been employed by the Company or its
Subsidiaries from the date hereof through the earlier of the date of (i) the
consummation of a Sale of the Company or (ii) the consummation of an IPO, all
Unvested Common Shares beneficially owned by such Executive, its Related
Parties, if any, or their respective permitted transferee as of such date shall
automatically become Vested Common Shares.
3. Repurchase Option. With respect to each Executive, in the event such
Executive's employment with the Company is terminated (the "Termination") for
any reason, all of the Executive Stock (whether held or beneficially owned by
the Executive, such Executive's Related Parties or any transferee of such
Executive or such Executive's Related Parties) will be subject to
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repurchase by the Company and BRS (or its designee) pursuant to the terms and
conditions set forth in this Section 3 (the "Repurchase Option").
(a) With respect to each holder of Executive Stock, the purchase price for
(x) each Unvested Common Share will be Original Cost for such share (with
Unvested Common Shares having the lowest cost subject to repurchase prior to
Unvested Common Shares with a higher cost) and (y) each Vested Common Share and
each share of Junior Preferred Stock will be the Fair Value for such share.
Notwithstanding the foregoing to the contrary, in the event any such
Termination is by the Company for Cause, the purchase price for each share of
Common Stock (whether vested or unvested) shall be the Original Cost of such
share.
(b) With respect to each Executive, the Board may elect to cause the
Company to purchase all or any portion of Executive Stock by delivering written
notice (the "Repurchase Notice") to the holder or holders of the Executive
Stock within 45 days after the Termination; provided, that in the event the
Company elects to purchase less than all of such Executive Stock, the Company
may not purchase any shares of Common Stock unless it also purchases a pro rata
portion of shares of Junior Preferred Stock. The Repurchase Notice will set
forth the number of Unvested Common Shares, Vested Common Shares and shares of
Junior Preferred Stock to be acquired from each holder, the aggregate
consideration to be paid for such securities and the time and place for the
closing of the transaction. The number of shares to be repurchased by the
Company shall first be satisfied to the extent possible from the shares of
Executive Stock held by the Executive at the time of delivery of the Repurchase
Notice. If the number of shares of Executive Stock then held by such Executive
is less than the total number of shares of Executive Stock the Company has
elected to purchase, the Company shall purchase the remaining shares elected to
be purchased from the other holder(s) of Executive Stock (i.e. such Executive's
Related Parties or any Permitted Transferee under the Stockholders Agreement)
under this Agreement, pro rata according to the number of shares of Executive
Stock held by such other holder(s) at the time of delivery of such Repurchase
Notice (determined as nearly as practicable to the nearest share). The number
of Unvested Common Shares, Vested Common Shares and shares of Junior Preferred
Stock to be repurchased hereunder will be allocated among the Executive and the
other holders of Executive Stock (if any) pro rata according to the number of
shares of Executive Stock to be purchased from such Persons.
(c) With respect to each Executive, if for any reason the Company does not
elect to purchase all of the Executive Stock pursuant to the Repurchase Option,
BRS (or its designee) shall be entitled to exercise the Repurchase Option for
all or any portion of the Executive Stock that the Company has not elected to
purchase (the "Available Shares"). Available Shares which are Vested Common
Shares are referred to herein as "Available Vested Common Shares", Available
Shares which are Unvested Common Shares are referred to herein as "Available
Unvested Common Shares" and Available Shares which are shares of Junior
Preferred Stock are referred to herein as "Available Junior Preferred Shares".
As soon as practicable after the Company has determined that there will be
Available Shares, but in any event within 45 days after the Termination, the
Company shall give written notice (the "Option Notice") to BRS (or its
designee) setting forth the number of any Available Vested Common Shares,
Available Unvested Common Shares and Available Junior Preferred Shares. BRS
(or its designee) may elect to purchase all or a portion of the Available
Shares by giving written notice to the Company within 30 days after the Option
Notice has been
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given by the Company; provided, however, that in the event BRS (or its
designee) elects to purchase less than all of the Available Shares, BRS (or its
designee) may not purchase any Available Unvested Common Shares or Available
Vested Common Shares unless it also purchases a pro rata portion of Available
Junior Preferred Shares. As soon as practicable, and in any event within ten
days after the expiration of the 30-day period set forth above, the Company
shall notify each holder of Executive Stock as to the number of Available
Vested Common Shares, Available Unvested Common Shares and Available Junior
Preferred Shares being purchased from such holder by BRS (or its designee) (the
"Supplemental Repurchase Notice"). At the time the Company delivers the
Supplemental Repurchase Notice to the holder(s) of Executive Stock, the Company
shall also deliver written notice to BRS (or its designee) setting forth the
number of Vested Common Shares, Unvested Common Shares and shares of Junior
Preferred Stock which BRS (or its designee) is entitled to purchase, the
aggregate purchase price and the time and place of the closing of the
transaction.
(d) With respect to each Executive, the closing of the purchase of the
Executive Stock pursuant to the Repurchase Option shall take place on the date
designated by the Company in the Repurchase Notice or Supplemental Repurchase
Notice, which date shall not be later than the 60th day after the delivery of
the later of such notices to be delivered (or, if later, the 15th day after the
Fair Value is finally determined) nor earlier than the fifth day after such
delivery. The Company and/or BRS (or its designee) will pay for the Executive
Stock to be purchased pursuant to the Repurchase Option by delivery of a
certified or cashier's check or wire transfer of funds. The purchasers of
Executive Stock hereunder will be entitled to receive customary representations
and warranties from the sellers thereof as to title, authority and capacity to
sell and to require all sellers' signatures to be guaranteed.
(e) Notwithstanding anything to the contrary contained in this Agreement,
all repurchases of Executive Stock by the Company shall be subject to
applicable restrictions contained in the Delaware General Corporation Law. If
any such restrictions prohibit the repurchase of Executive Stock hereunder
which the Company is otherwise entitled to make, the Company may make such
repurchases as soon as it is permitted to do so under such restrictions.
4. Restrictions on Transfer.
(a) The certificates representing the Executive Stock will bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION
FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS
SET FORTH IN A MANAGEMENT STOCK AGREEMENT BETWEEN THE COMPANY AND
THE SIGNATORY THERETO AND A STOCKHOLDERS AGREEMENT AMONG
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THE COMPANY AND CERTAIN OTHER PARTIES THERETO BOTH DATED AS OF
NOVEMBER 30, 1999. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY
THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS
WITHOUT CHARGE."
(b) The Executive Stock is subject to the restrictions on transfer set
forth in the Stockholders Agreement.
5. Representations and Warranties. In connection with the purchase and
sale of the Executive Stock pursuant to the Merger Agreement, each Purchaser
represents and warrants to the Company that:
(a) such Purchaser is the beneficial owner of the "Retained Shares" (as
defined in Section 3.2 of the Merger Agreement) that such Purchaser (or its
designee) exchanged for certain shares of Executive Stock pursuant to Section
3.2 of the Merger Agreement.
(b) the Executive Stock to be acquired by such Purchaser will be acquired
for such Purchaser's own account (or for the account of one or more members of
such Purchaser's family) and not with a view to, or any present intention of,
distribution thereof in violation of the Securities Act, or any applicable
state securities laws, and the Executive Stock will not be disposed of in
contravention of the Securities Act or any applicable state securities laws.
(c) no commission, fee or other remuneration is to be paid or given,
directly or indirectly, to any Person for soliciting such Executive to purchase
the Executive Stock.
(d) such Purchaser (1) is either an officer or employee of the Company or
one of its Subsidiaries or is otherwise an "accredited investor" as such term
is defined in Rule 501 of Regulation D of the Securities Act, (2) is
sufficiently sophisticated in financial matters to analyze the investment in
the Executive Stock, (3) is able to evaluate the risks and benefits of the
investment in the Executive Stock, and (4) has determined that such investment
in the Executive Stock is suitable for such Purchaser, based upon such
Purchaser's financial situation and needs, as well as such Purchaser's other
securities holdings.
(e) such Purchaser:
(i) has not been convicted within the last five years of any felony or
misdemeanor in connection with the offer, purchase, or sale of any security or
any felony involving fraud or deceit, including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny, or conspiracy to
defraud;
(ii) is not currently subject to any state administrative enforcement
order or judgment entered by a state securities administrator within the last
five years or is subject to any state's administrative enforcement order or
judgment in which fraud or deceit, including, but not limited to, making untrue
statements of material facts and omitting to state material facts, was found
and the order or judgment was entered within the last five years;
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(iii) is not subject to any state's administrative enforcement order or
judgment which prohibits, denies or revokes the use of any exemption from
registration in connection with the offer, purchase or sale of securities; or
(iv) is not currently subject to any order, judgment or decree of any
court of competent jurisdiction, entered within the last five years,
temporarily or preliminarily restraining or enjoining such Purchaser from
engaging in or continuing any conduct or practice in connection with the
purchase or sale of any security or involving the making of any false filing
with the state.
(f) such Purchaser is able to bear the economic risk of such Purchaser's
investment in the Executive Stock for an indefinite period of time and the
Purchaser understands that the Executive Stock has not been registered under
the Securities Act and cannot be sold unless subsequently registered under the
Securities Act or an exemption from such registration is available.
(g) such Purchaser has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of Executive Stock
and has had full access to such other information concerning the Company as the
Purchaser has requested. The Purchaser has reviewed, or has had an opportunity
to review, the following documents: (A) the Company's Certificate of
Incorporation and Bylaws; (B) the Merger Agreement; and (C) all of the
materials provided by the Company to any Person providing financing to the
Company, including, but not limited to, the Company's pro forma balance sheet,
as well as financial projections, estimates, forecasts, budgets, summaries,
reports and other related documents.
(h) this Agreement constitutes the legal, valid and binding obligation of
such Purchaser, enforceable in accordance with its terms (except as the same
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or by general equitable principles), and
the execution, delivery and performance of this Agreement by such Purchaser
does not and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which such Purchaser is a party or any
judgment, order or decree to which such Purchaser is subject.
(i) As an inducement to the Company to issue the Executive Stock to such
Purchaser, and as a condition thereto, such Purchaser acknowledges and agrees
that neither the issuance of the Executive Stock to the Purchaser (or to the
account of such Purchaser) nor any provision contained herein shall, in the
case of any Purchaser who is an officer or employee of the Company, entitle
such Purchaser to remain in the employment of the Company and its Subsidiaries
or affect the right of the Company to terminate such Purchaser's employment at
any time for any reason.
6. Confidential Information. Each Executive acknowledges that the
information, observations and data obtained by him/her while employed by the
Company or any of its Subsidiaries concerning the business or affairs of the
Company or any Subsidiary ("Confidential Information") are the property of the
Company or such Subsidiary. Therefore, each Executive agrees that he/she will
not disclose to any unauthorized person or use for his own account any
Confidential Information without the prior written consent of the Board, unless
and to the extent that the aforementioned
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matters (i) become generally known to and available for use by the public other
than as a result of such Executive's acts or omissions to act or (ii) are
required to be disclosed under applicable law or a duly issued subpoena. Each
Executive shall deliver to the Company at the termination of such Executive's
employment, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes and software and other documents and
data (and copies thereof) relating to the Confidential Information, Work
Product (as defined below) and the business of the Company or any Subsidiary
which he/she may then possess or have under his/her control.
7. Inventions and Patents. Each Executive agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information which relates to the Company's
or any of its Subsidiaries' actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by such Executive while employed by the Company or any of its
Subsidiaries ("Work Product") belong to the Company or such Subsidiary. The
Executive will promptly disclose such Work Product to the Board and perform all
actions reasonably requested by the Board (whether during or after such
Executive's employment period) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
8. Noncompete, Nonsolicitation.
(a) Each Executive acknowledges that in the course of his/her employment
with the Company and its Subsidiaries he/she has become familiar, and he will
become familiar, with the Company's and its Subsidiaries' trade secrets and
with other Confidential Information and that his/her services have been and
will be of special, unique and extraordinary value to the Company and its
Subsidiaries. Therefore, such Executive agrees that, during the time he/she is
employed by the Company and its Subsidiaries and thereafter for a period equal
to six (6) months, or such longer period during which such Executive receives
compensation from the Company pursuant to such Executive's TPA (the "Noncompete
Period"), he/she will not directly or indirectly own, manage, control,
participate in, consult with, render services for, or in any manner engage in
any business (including by himself or through any other entity) competing with
the businesses of the Company or its Subsidiaries as such businesses exist or
are in process on the date of the termination of such Executive's employment.
Nothing herein will prohibit any Executive from being a passive owner of not
more than 2% of the outstanding stock of a corporation which is publicly
traded, so long as such Executive has no active participation in the business
of such corporation.
(b) During the Noncompete Period, each Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Company or any Subsidiary of the Company to leave the employ of the
Company or such Subsidiary, or in any way materially interfere with the
relationship between the Company or any Subsidiary of the Company and any
employee thereof, (ii) hire any person who was an employee of the Company or
any Subsidiary of the Company within the last twelve months prior to the
termination of such Executive's employment with the Company, or (iii) induce or
attempt to induce any customer, supplier, licensee or other business relation
of the Company or any Subsidiary of the Company to cease doing business with
the Company or such Subsidiary, or in any way materially interfere with the
relationship
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between any such customer, supplier, licensee or business relation and the
Company or any Subsidiary of the Company.
(c) If, at the time of enforcement of this Section 7, a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the
stated duration, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum period, scope and area
permitted by law.
(d) In the event of a breach or a threatened breach by any Executive of
any of the provisions of this Section 7, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security).
9. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient (followed by telephone confirmation to the receiving party).
Such notices, demands and other communications will be sent to the address
indicated below:
To the Company to:
X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President and Secretary
Facsimile: (000) 000-0000 (President)
(000) 000-0000 (Secretary)
With a copy, which shall not constitute notice to the Company, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To any Executive or Purchaser to:
[EXECUTIVE OR PURCHASER]
c/o X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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To BRS:
Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxxx
With a copy, which shall not constitute notice to BRS, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
10 Miscellaneous.
(a) Section 83(b) Election. Within thirty (30) days after the date hereof,
each Executive will make an effective election with the Internal Revenue
Service under Section 83(b) of the Internal Revenue Code and the regulations
promulgated thereunder in the form of Exhibit I attached hereto.
(b) Transfers in Violation of Agreement. Any transfer or attempted
transfer of any Executive Stock in violation of any provision of this Agreement
shall be null and void, and the Company shall not record such transfer on its
books or treat any purported transferee of such Executive Stock as the owner of
such stock for any purpose.
(c) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) Complete Agreement. This Agreement embodies the complete agreement
and understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
-11-
12
(e) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(f) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Purchasers, the Company, BRS and their respective successors and assigns
(including subsequent holders of Executive Stock); provided, that the rights
and obligations of the Purchasers under this Agreement shall not be assignable
except in connection with a permitted transfer of Executive Stock hereunder.
(G) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL GOVERN
ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(h) Remedies. Each of the parties to this Agreement (including BRS) will
be entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorneys' fees) caused by any breach
of any provision of this Agreement and to exercise all other rights existing in
its favor. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity
of competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be amended
and waived only with the prior written consent of the Company, the Purchasers
and BRS.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Management Stock
Purchase Agreement as of the date first written above.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: President and Chief Operating Officer
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx & Xxxx Xxxxxxxx
--------------------------------------------
XXXXXXX X. XXXXXXXX & XXXX XXXXXXXX, JOINT
TENANTS
MLPF&S
FBO XXXXXXX X. XXXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx X. X'Xxxxxxxx
--------------------------------------------
XXXXXXX X. X'XXXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx
/s/ Xxxxxxxx X'Xxxxxxxx
--------------------------------------------
XXXXXXX X. X'XXXXXXXX & XXXXXXXX X'XXXXXXXX,
JOINT TENANTS
/s/ Xxxxxxx X. X'Xxxxxxxx
--------------------------------------------
XXXXXXX X. X'XXXXXXXX,
AS CUSTODIAN FOR XXXX X'XXXXXXXX
14
/s/ Xxxxxxx X. X'Xxxxxxxx
--------------------------------------------
XXXXXXX X. X'XXXXXXXX,
AS CUSTODIAN FOR XXXXXXX X'XXXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx
--------------------------------------------
XXXXXXX X. X'XXXXXXXX,
AS CUSTODIAN FOR XXXXXX X'XXXXXXXX
XX XXXXXXX & SONS, INC., CUST. XXXXXXX
X. O'XXXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
XX XXXXXXX & SONS, INC., CUST. XXXXXXXX
X'XXXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
XXXXXXX X. XXXXX & XXXX X. XXXXX, JOINT
TENANTS
XXXXXX X. XXXXX & CO., CUST. XXXXXXX X.
XXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
15
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
THE ESTATE OF XXXXXXXX X. XXXXXX
MLPF&S, CUST. FBO XXXXXX X. XXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
--------------------------------------------
XXXXXX X. X'XXXXXXXX, XX.
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
--------------------------------------------
BATO FAMILY INVESTMENT LP
/s/ Xxxxx X. X'Xxxxxxxx
--------------------------------------------
XXXXX X. X'XXXXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
--------------------------------------------
XXXXXX X. X'XXXXXXXX, XX., AS CUSTODIAN FOR
XXXXX X. X'XXXXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx.
/s/ Xxxxx X'Xxxxxxxx
--------------------------------------------
XXXXXX X. X'XXXXXXXX, XX. & XXXXX
X'XXXXXXXX, JOINT TENANTS
16
XX XXXXXXX & SONS, INC., CUST. XXX
X'XXXXXXXX, XX. XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXX X. XXXXXXX
XX XXXXXXX & SONS, INC., CUST.
XXX X. XXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx X. Xxxxxx, III
--------------------------------------------
XXXXXXX X. XXXXXX, III
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX X. XXXXXX & XXXXX X. XXXXXX,
JOINT TENANTS
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXX
/s/s Xxxxxx X. Xxxxxx
--------------------------------------------
XXXXXX X. XXXXXX
17
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx Xxxx X'Xxxxxxxx Xxxxxxx
--------------------------------------------
XXXXX XXXX X'XXXXXXXX XXXXXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX & XXXXX X. XXXXXXX,
JOINT TENANTS
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXX X. XXXXXXX
MLPF&S, CUST. FBO XXXXX X. XXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
18
UMB BANK, TRUSTEE U/A FBO XXXXX XXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
MLPF&S, CUST. FBO XXXXX XXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------
XXXXXXXX XXXXXX
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx
--------------------------------------------
XXXXXXXX XXXXXX & XXXXXXXX XXXXXX,
JOINT TENANTS
XXXXXXXXXX & CO., CUST. XXXXX XXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
XXXX X. XXXXXXX
19
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
XXXX X. XXXXXXXXX & XXXX X. XXXXXXXXX,
JOINT TENANTS
/s/ Xxxxxx Xxxxxxx X'Xxxxxxxx
--------------------------------------------
XXXXXX XXXXXXX X'XXXXXXXX
/s/ Xxxxxx Xxxxxxx X'Xxxxxxxx
/s/ Xxxxxxxxx X'Xxxxxxxx
--------------------------------------------
XXXXXX XXXXXXX X'XXXXXXXX &
XXXXXXXX X'XXXXXXXX
XX XXXXXXX & SONS, INC., CUST.
XXXXXX XXXXXXX O'XXXXXXXX XXX
By:
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx Day
--------------------------------------------
XXXXXXX DAY
/s/ Xxxxxxxx Xxxx X'Xxxxxxxx Day
--------------------------------------------
XXXXXXXX XXXX X'XXXXXXXX DAY
/s/ Xxxxxxx Day /s/ Xxxxxxxx X. Day
--------------------------------------------
XXXXXXX DAY & XXXXXXXX X. DAY
20
MLPF&S, CUST. FBO XXXXX XXX XXX
By:
--------------------------------------------
Name:
Its:
MLPF&S, CUST. FBO XXXXX X. DAY XXX
By:
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX X. XXXXXX, AS CUSTODIAN FOR
XXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX X. XXXXXX & XXXXX X. XXXXXX,
JOINT TENANTS
/s/ Xxxxxx X. Tidil
--------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
21
XXXXXX X. XXXXX & CO., CUST. FBO
XXXXX X. XXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
XXXX X. XXXXXXXXXXX
/s/ Xxxxx Xxxxxxxxxx
--------------------------------------------
XXXXX XXXXXXXXXX
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
XXXXX XXXXXXXXXX & XXXXXX XXXXXXXXXX,
JOINT TENANTS
/s/ Xxx X. Xxxxxx
--------------------------------------------
XXX X. XXXXXX
UMB BANK TRUSTEE U/A FBO XXX XXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxx X. Xxx, Xx.
--------------------------------------------
XXXX X. XXX, XX.
/s/ Xxxxx X. Edge
--------------------------------------------
XXXXX X. EDGE
22
XXXXXX X. XXXXX & CO., CUST. XXXXX EDGE XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
XXXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
--------------------------------------------
XXXXXXX X. XXXX & XXXXXX X. XXXX
XX XXXXXXX & SONS, INC., CUST.
XXXXXXX XXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx Xxxxxxx
--------------------------------------------
XXXXXXX XXXXXXX
/s/ Xxx X. Xxxxxxx
--------------------------------------------
XXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXXX X. XXXXXXX
/s/ Xxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXX X. XXXXXXX & XXXXX X. XXXXXXX,
JOINT TENANTS
23
XX XXXXXXX & SONS, INC., CUST.
MAX W. XXXXXXX XXX
--------------------------------------------
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
XXXXXXX X. XXXX
XXXXXX X. XXXXX & CO., CUST. XXX XXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
XXXXX X. XXXXXX & XXXXXXXXX X. XXXXXX,
JOINT TENANTS
/s/ Xxxxxx X. X'Xxxxxxxx
--------------------------------------------
XXXXXX X. X'XXXXXXXX
24
XX XXXXXXX & SONS, INC., CUST.
XXXXX X. O'XXXXXXXX XXX
By: /s/
--------------------------------------------
Name:
Its:
X'XXXXXXXX PROPERTIES, INC.
By: /s/ Xxxxxx X. X'Xxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxx X. X'Xxxxxxxx, Xx.
Its: President
Agreed and Accepted:
BRUCKMANN, XXXXXX, XXXXXXXX &
CO. II, L.P.
By: BRSE, L.L.C.
--------------------------------------------
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
