Exhibit 10.8
XXXXXX'X TRADING COMPANY, INC.
FORM OF
1999 STOCK SUBSCRIPTION AGREEMENT
THIS STOCK SUBSCRIPTION AGREEMENT (this "Agreement") is made and
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entered into as of _________, by and between Xxxxxx'x Trading Company, Inc., an
Indiana corporation (the "Company"), and __________________ ("Purchaser").
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R E C I T A L S
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A. The Company now desires to sell to Purchaser, who is an employee
of the Company, and Purchaser desires to purchase from the Company, Shares (as
hereinafter defined), subject to the terms and conditions set forth in this
Agreement. The date on which such sale and purchase occur shall be referred to
herein as the "Closing Date."
B. In order to induce the Company to sell the Shares to the
Purchaser, Purchaser agrees to hold such shares subject to the restrictions and
interests created by this Agreement.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties agree as follows:
1. Sale and Purchase of Shares. The Company hereby agrees to sell to
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Purchaser, subject to the conditions and restrictions contained in this
Agreement, and Purchaser hereby agrees to purchase from the Company,
________shares of Class A Common Stock without par value of the Company
(individually, a "Share," and collectively, the "Shares" or the "Common Stock"),
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at a price of $_________ per Share, for an aggregate purchase price of
__________ (the "Purchase Price"). The Purchase Price shall be payable by
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delivery of (a) cash or Purchaser's check in the amount of _________, and (b) a
secured promissory note of Purchaser issued to the Company for ____________ due
five years from the effective date hereof (the "Note"). Payment of all amounts
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owed under the Note and compliance by Purchaser with the terms and conditions
of this Agreement and the Pledge Agreement (as hereinafter defined) shall be
secured by a pledge of the Shares, in conjunction with which Purchaser shall
execute a Stock Pledge Agreement dated as of the date hereof (the "Pledge
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Agreement"). Purchaser shall deliver the cash or check, the Note, and the Pledge
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Agreement to the Company prior to the Closing Date, each dated as of the Closing
Date. In connection with the purchase of Shares hereunder, Purchaser
acknowledges that he or she has reviewed the Disclosure Statement regarding
Section 83(b) of the Internal Revenue Code of 1986, as amended.
2. Restrictions on Transfer.
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(a) Compliance with Securities Laws. Notwithstanding anything
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contained in this Agreement, Purchaser may not sell, transfer, assign, pledge,
hypothecate or
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otherwise dispose of (collectively, "Transfer"), or enter into any swap,
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participation or other arrangement that transfers to another person, in whole or
in part, any of the economic consequences of ownership with respect to (a "Swap
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Transaction"), any of the Shares, or any right, title or interest therein,
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except in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), applicable state securities laws and this Agreement. Any
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purported Transfer or Transfers (including involuntary Transfers initiated by
operation of legal process) or Swap Transactions with respect to any of the
Shares or any right, title or interest therein, except in strict compliance with
the terms and conditions of this Agreement, shall be null and void.
(b) Opinion of Counsel. Purchaser agrees that it will not
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Transfer any Shares (other than in a Public Market Sale (as hereinafter
defined)) prior to delivery to the Company of an opinion of counsel in form and
substance reasonably satisfactory to the Company with respect to compliance with
the Securities Act.
(c) Transfers by Purchaser.
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(i) Subject to and upon full compliance with Section 6 of
the Pledge Agreement, Purchaser may, at any time or times, Transfer any or
all of the Shares: (a) inter vivos to Purchaser's spouse or issue, a trust
for their benefit, or pursuant to any will or testamentary trust; or (b)
upon Purchaser's death, to any person in accordance with the laws of
descent and/or testamentary distribution (such persons described in clauses
(a) and (b) hereof are collectively referred to herein as "Permitted
Transferees"). Notwithstanding the foregoing in this Section 2(c)(i),
Shares shall not be Transferred pursuant to this Section 2(c)(i) until the
Permitted Transferee executes a valid undertaking, in form and substance
reasonably satisfactory to the Company, to the effect that the Permitted
Transferee and the Shares so Transferred shall thereafter remain subject to
all of the provisions of this Agreement and the Pledge Agreement, as though
the Permitted Transferee were a party to this Agreement and the Pledge
Agreement, bound in every respect in the same way as Purchaser. Transfers
made in accordance with this Section 2(c)(i) shall not be subject to the
provisions of Section 3 of this Agreement.
(ii) Prior to the date that is five (5) years from the
date hereof (the "Permitted Transfer Date"), Purchaser shall not Transfer
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any of his Shares or enter into any Swap Transaction with respect to any of
his Shares, other than a Transfer (i) to the Company, (ii) pursuant to and
in conformity with Section 2(c)(i) hereof, (iii) pursuant to and in
conformity with Section 5 or 6 hereof, or (iv) in a Public Market Sale. The
term "Public Market Sale" means any sale of Common Stock after the Initial
Public Offering which is made pursuant to Rule 144 promulgated under the
Securities Act or which is permitted by Rule 701 promulgated under the
Securities Act or which is made pursuant to a registration statement filed
with, and declared effective by, the Securities and Exchange Commission.
(iii) From and after the Permitted Transfer Date,
Purchaser may Transfer all or any portion of his Shares, provided that (x) the
transferee executes
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a valid undertaking, in form and substance reasonably satisfactory
to the Company, to the effect that such transferee and the Shares
so Transferred shall thereafter remain subject to the provisions
of Section 3, 4 and 5 of this Agreement and (y) such Transfer is
subject to compliance with Section 3 hereof.
3. Right of First Refusal.
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(a) Sales, Notice. Prior to any intended Transfer pursuant
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to Section 2(c)(iii) hereof, Purchaser shall first give at least thirty (30)
days' advance written notice (the "Notice") to the Company specifying (i)
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Purchaser's bona fide intention to sell such Shares; (ii) the name(s) and
address(es) of the proposed transferee(s); (iii) the number of Shares Purchaser
proposes to Transfer (individually, an "Offered Share," and collectively, the
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"Offered Shares"); (iv) the price for which Purchaser proposes to Transfer each
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Offered Share (the "Proposed Purchase Price"); (v) such evidence as the Company
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may reasonably request to demonstrate the ability of the proposed transferee(s)
to pay the Proposed Purchase Price; and (vi) all other material terms and
conditions of the proposed transfer.
(b) Election by the Company. Within twenty (20) days after
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receipt of the Notice, the Company may elect to purchase any or all of the
Offered Shares at the price and on the terms and conditions set forth in the
Notice by delivery of written notice of such election to Purchaser, specifying a
day, which shall not be more than twenty (20) days after such notice is
delivered, on or before which Purchaser shall surrender (if Purchaser has not
already done so) the certificate or certificates representing the Offered Shares
with stock powers duly endorsed in blank at the administrative office of the
Company. Within twenty (20) days after delivery of such notice to Purchaser, the
Company shall deliver to Purchaser a check, payable to Purchaser or to such
person as Purchaser shall request, in the amount equal to the product of the
Proposed Purchase Price multiplied by the number of Offered Shares (the "First
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Refusal Price") in exchange for the Offered Shares. If Purchaser fails to so
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surrender such certificate or certificates on or before such date, from and
after such date the Offered Shares shall be deemed to be no longer outstanding,
and Purchaser shall cease to be a Shareholder with respect to such Shares and
shall have no rights with respect thereto except only the right to receive
payment of the First Refusal Price, without interest, upon surrender of the
certificate or certificates therefor with stock powers duly endorsed in blank.
Notwithstanding the foregoing, in the event any principal, interest, fees,
expenses or other amounts due on or in connection with the Note (the
"Outstanding Amount") are owed to the Company by Purchaser, the First Refusal
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Price shall be reduced (to an amount not less than zero) by such Outstanding
Amount, which reduction shall be specified in reasonable detail in the Company's
written notice of election to purchase the Offered Shares. If the Company does
not elect to purchase all of the Offered Shares, Purchaser shall be entitled to
Transfer the balance of the Offered Shares, subject to Section 6 of the Pledge
Agreement, to the transferee(s) named in the Notice at the Proposed Purchase
Price, or at a higher price, and on the terms and conditions set forth in the
Notice; provided, however, that such Transfer must be consummated within ninety
(90) days after the date of the Notice and any proposed Transfer after such
ninety (90) day period may be made only by again complying with the procedures
set forth in this Section 3.
(c) Termination on Initial Public Offering. This right of
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first refusal shall terminate upon an underwritten public offering of Common
Stock by the Company registered
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under the Securities Act resulting in gross proceeds to the Company and selling
shareholders, if applicable, in excess of $50 million and the sale of newly
issued Common Stock representing at least fifteen percent (15%) of the
outstanding Common Stock of the Company (an "Initial Public Offering").
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4. Repurchase Option Upon Termination.
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(a) Repurchase Option. Subject to the terms and conditions of
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this Section 4, in the event that Purchaser's employment or other relationship
with the Company terminates for any reason (including, without limitation, by
reason of Purchaser's death, disability, retirement, voluntary resignation or
dismissal by the Company, with or without cause), the Company shall have the
option (the "Repurchase Option") to purchase from Purchaser all or any portion
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of the Shares acquired by Purchaser under this Agreement for a period of six (6)
months after the effective date of such termination (the effective date of
termination is hereinafter referred to as the "Termination Date") (the
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"Repurchase Period").
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(b) Repurchase Price. The purchase price (the "Repurchase
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Price") for each Share to be purchased pursuant to the Repurchase Option shall
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equal (a) the greater of Purchase Price and Book Value (as defined herein) if
the Termination Date occurs within the two (2) year period commencing on the
date hereof and (b) the greater of the Purchase Price and the Fair Market Value
(as defined herein) thereof thereafter. The "Book Value" of a Share shall equal
$10.00 per Share plus the net income or minus the net loss per share from
September 1, 1999 to the end of the fiscal quarter immediately preceding the
Termination Date, as determined by the Board of Directors of the Company (the
"Board"), acting in good faith and based upon the books and records of the
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Company prepared in accordance with generally accepted accounting principles
consistently applied, which determination shall be final and binding. The "Fair
Market Value" of a Share shall be the fair market value of a Share as of the
Termination Date, as reasonably determined by the Board in good faith.
(c) Adjustments to Repurchase Price. The Repurchase Price for
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any Shares to be purchased pursuant to the Repurchase Option shall be increased
or decreased appropriately to reflect any distribution of stock or other
securities of the Company or any successor or assign of the Company which is
made in respect of, in exchange for or in substitution of the Shares by reason
of any split, reverse split, combination, recapitalization, reclassification,
merger, consolidation or otherwise.
(d) Repurchase Notice. The Repurchase Option shall be
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exercised by the Company by delivery to Purchaser of a written notice (the
"Repurchase Notice") (a) setting forth the Company's intent to exercise the
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Repurchase Option and containing the total number of Shares to be sold to the
Company pursuant to the Repurchase Option, (b) mailed, via postage pre-paid
registered or certified United States mail, to the attention of or otherwise
actually delivered to the Purchaser at the Purchaser's most recent address
reflected in the Company's payroll records (or to such other representative of
the Purchaser or such other address as the Purchaser may duly notice in writing
to the Company) and (c) delivered to the Purchaser no later than the last day of
the Repurchase Period.
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(e) Closing. The closing of any repurchase under this Section
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4 shall be at a date to be specified by the Company, such date to be no later
than the later to occur of (i) 30 days after the date of the Repurchase Notice
and (ii) the last day of the Repurchase Period. The Repurchase Price shall be
paid at the closing in the form of a check payable to the Purchaser, in the
amount equal to the Repurchase Price, against surrender by the Purchaser of a
stock certificate or certificates evidencing the Shares with stock powers duly
endorsed in blank. If Purchaser fails to so surrender such certificate or
certificates on or before such date, from and after such date the Shares which
the Company elected to repurchase shall be deemed to be no longer outstanding,
and Purchaser shall cease to be a stockholder with respect to such Shares and
shall have no rights with respect thereto except only the right to receive
payment of the Repurchase Price, without interest, upon surrender of the
certificate or certificates therefor with duly endorsed stock powers.
Notwithstanding the foregoing in this Section 4, if any Outstanding Amount is
owed to the Company by Purchaser, the Repurchase Price for the number of the
Shares to be repurchased hereunder shall be reduced by such Outstanding Amount,
which reduction shall be specified in reasonable detail in the Company's written
notice of election to exercise the Repurchase Option. If the Outstanding Amount
exceeds the Repurchase Price for the number of the Shares to be repurchased,
Purchaser shall remain obligated and liable to the Company for the unpaid
balance thereof.
(f) Termination of Initial Public Offering. This Repurchase
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Option shall terminate upon an Initial Public Offering.
5. Obligation to Sell Securities.
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(a) Notice of Sale. If FS Equity Partners IV, L.P., a Delaware
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limited partnership, ("FS Equity") finds a third-party buyer (the "Third Party
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Buyer") for all shares of Common Stock held by it (whether such sale is by way
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of purchase, exchange, merger or other form of transaction), upon the request of
FS Equity, Purchaser shall sell all of Purchaser's Shares for the same per share
consideration (which may be less than the Purchase Price per share paid by
Purchaser), and otherwise pursuant to the terms and conditions applicable to FS
Equity for the sale of its shares of Common Stock. FS Equity shall send
Purchaser a written notice ("Sale Notice") of the exercise of its rights under
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this Section 5(a).
(b) Closing of Sale. Purchaser agrees to timely take such
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actions as FS Equity may reasonably request in connection with the approval of
the consummation of such sale, transfer, reorganization, exchange, merger,
combination or other form of transaction, including voting as a stockholder to
approve any such sale, transfer, reorganization, exchange, merger, combination
or other form of transaction and waiving any appraisal rights that Purchaser may
have in connection therewith. Without limiting the generality of the foregoing,
within 30 days of Purchaser's receipt of the Sale Notice, Purchaser shall
deliver to FS Equity, certificates representing Purchaser's Shares to be sold
pursuant to this Section 5 together with stock powers duly endorsed in blank. In
the event that Purchaser fails to deliver such certificates, Company shall cause
the books and records of Company to show that Purchaser's Shares are bound by
the provisions of this Section 5 and that such Shares shall be transferred only
to the Third Party Buyer upon surrender for transfer by Purchaser. Purchaser
hereby grants to FS Equity an irrevocable proxy to vote Purchaser's Shares and
to exercise all the rights, powers, privileges and remedies to which a holder of
such Shares would be entitled, which proxy shall be effective,
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automatically and without the necessity of any action (including any transfer of
any such Shares on the records books of the Company) by any other person, upon
the failure of Purchaser to deliver any of his Shares pursuant to this Section 5
and which proxy shall terminate only upon consummation of the sale of such
Shares or 120 days after the Sale Notice is given (or such longer period as may
be necessary to complete any applicable regulatory approval process in
connection with such sale) if FS Equity has not completed the sale of such
Shares in accordance herewith.
(c) Termination Upon Initial Public Offering. The rights of FS
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Equity under this Section 5 shall terminate upon an Initial Public Offering.
6. Tag Along Rights. If FS Equity finds a third-party buyer (other
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than a buyer that is an investment fund or partnership affiliated with FS Equity
or a general or limited partner of FS Equity (each a "FS Permitted
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Transferee")), for all or part of the shares of Common Stock held by FS Equity
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(whether such sale is by way of purchase, exchange, merger or other form of
transaction), the Purchaser shall have the right (a "Tag Along Right") to sell,
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on the terms set forth in a written notice (the "Offering Notice") delivered by
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FS Equity to the Purchaser describing the terms of the proposed sale (including
the minimum sale price to the shares of Common Stock that FS Equity plans to
sell), that amount of the Shares Purchaser then owns which constitutes the same
percentage of his Shares as the percentage of Common Stock sold by FS Equity
after giving effect to the exercise of the Tag Along Right and all other tag
along rights. Each such right shall be exercisable by delivering written notice
to FS Equity within 15 days after receipt of the Offering Notice. Failure to
exercise such right within such 15-day period shall be regarded as a waiver of
such rights. FS Equity shall have 180 days from the expiration of such 15-day
period to consummate the proposed Transfer at a price no greater than the price
set forth in the Offering Notice and on terms and conditions no more favorable
to FS Equity than those stated in the Offering Notice. Any Shares that continue
to be held by FS Equity after such 180-day period shall again be subject to the
provisions of this Section 6. The obligations of FS Equity under this Section 6
shall terminate upon an Initial Public Offering.
7. Security for Performance. The Company and Purchaser hereby
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acknowledge (a) that Purchaser has agreed to pledge the Shares to secure the
payment of all obligations existing under the Note whether for principal,
interest, fees, expenses or otherwise and/or to ensure Purchaser's compliance
with the terms and conditions of this Agreement and the Pledge Agreement and (b)
that in connection with such pledge, Purchaser shall enter into the Pledge
Agreement as of the Closing Date requiring that the certificates evidencing the
Shares (the "Certificates") be held by the Company as security for the payment
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of all obligations existing under the Note, whether for principal, interest,
fees, expenses or otherwise, and for Purchaser's compliance with the terms and
conditions of this Agreement and the Pledge Agreement. Subject to compliance
with the terms and conditions of this Agreement and of the Pledge Agreement,
Purchaser shall exercise all rights and privileges of the registered holder of
the Shares held by the Company pursuant to the Pledge Agreement and shall be
entitled to receive any dividend or other distribution thereon.
8. Board of Directors.
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(a) Composition of Board. Subject to Section 8(d), The Limited,
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Inc., a Delaware corporation ("The Limited") shall be entitled, but not
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required, to nominate two members (the "Limited Nominees") of the Board. Subject
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to Section 8(d), FS Equity shall be entitled, but not required, to nominate four
members (the "FS Nominees") of the Board. The seventh member of the Board shall
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at all times be the then current Chief Executive Officer of the Company. The
eighth member of the Board shall at all times be the chairman of the Board and
the Purchaser agrees that, at Closing, the chairman of the Board shall be Xxxxxx
Xxxxxxxx.
(b) Voting of Shares.
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(i) Purchaser agrees to vote or cause to be voted all
of his Shares at any regular or special meeting of the stockholders
of the Company called for the purpose of filling positions on the
Board, or in any written consent executed in lieu of such a meeting
of stockholders, and agrees to take or cause to be taken all actions
otherwise necessary, to ensure the election to the Board of the
Limited Nominees and the FS Nominees and the other directors as
required by Section 8(a).
(ii) Purchaser hereby agrees to use his best efforts to
call, or cause the appropriate officers and directors of the Company
to call, a special meeting of stockholders of the Company, and
Purchaser hereby agrees to vote or cause to be voted all of his
Shares for, or to take or cause to be taken, all actions by written
consent in lieu of any such meeting necessary to cause, the removal
(with or without Cause) of (i) any Limited Nominee if The Limited
requests such director's removal for any reason, and (ii) any FS
Nominee if FS Equity requests such director's removal for any reason.
(c) Removal of Nominees. Except as provided in Section
8(b)(ii), Purchaser hereby agrees that it will not vote in favor of the removal
of any Limited Nominee or FS Nominee unless such removal shall be for Cause. For
the purposes of this Section 8(c), "Cause" shall mean the willful and continued
failure by a director substantially to perform his duties as a director of the
Company, the willful engaging by a director in conduct which is demonstrably and
materially injurious to the Company, or the director's conviction of any crime
constituting a felony which involves moral turpitude.
(d) Reduction in Limited Nominees and FS Nominees.
Notwithstanding the foregoing, (i) at such time as The Limited ceases to own
Shares representing more than 50% of the Shares held by it on August 31, 1999,
The Limited shall be entitled to designate no more than 1 member of the Board,
(ii) at such time as FS Equity ceases to own Shares representing more than 75%
of the Shares held by it on August 31, 1999, FS Equity shall be entitled to
designate no more than 3 members of the Board, (iii) at such time as FS Equity
ceases to own Shares representing more than 50% of the Shares held by it on
August 31, 1999, FS Equity shall be entitled to designate no more than 2 members
of the Board, (iv) at such time as FS Equity ceases to own Shares representing
more than 25% of the Shares held by it as a group on August 31, 1999, FS Equity
shall be entitled to designate no more than 1 member of the Board and (v) at
such time as The Limited or FS Equity shall own less than 5% of the Shares, such
stockholder's right to designate members of the Board shall terminate.
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9. Purchaser's Representations, Warranties and Agreements. Purchaser
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represents and warrants to the Company as follows:
(a) Restrictions on Transfer. The Purchaser agrees and
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acknowledges that the Shares are subject to significant restrictions on transfer
as well as certain obligations to sell as set forth in this Agreement.
(b) Investment Representations. The Purchaser represents and
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warrants as follows:
(i) The Purchaser is acquiring the Shares for
investment for Purchaser's own account and not with a view to, or for resale in
connection with, the distribution or other disposition thereof except in
compliance with this Agreement and as permitted by law, including without
limitation, the Act. The Purchaser does not have any present intent to resell or
distribute all or any part of his Shares in violation of the Securities Act.
(ii) The Purchaser has been advised that the Shares have
not been registered under the Act, that the Shares may not be sold or otherwise
disposed of unless registered thereunder or an exemption from registration is
available and that accordingly it may be required to bear the economic risk of
the investment in the Shares for an indefinite period of time. The Purchaser
also understands that the Company does not have any intention of registering the
Shares under the Securities Act or of supplying the information which may be
necessary to enable the Purchaser to sell the Shares pursuant to Rule 144 under
the Securities Act.
(iii) The Purchaser (A) has received and reviewed a
Disclosure Statement from the Company relating to his investment in the Shares,
(B) by virtue of such Purchaser's employment relationship with the Company is
generally knowledgeable regarding the business of the Company and (C) has been
given the opportunity to obtain any additional information or documents and to
ask questions and receive answers about such documents, the Company and the
business and prospects of the Company as he or she deems necessary to evaluate
the merits and risks related to his investment in the Shares and no
representations concerning such matters or any other matters relating to such
investment have been made to the Purchaser except as set forth in this
Agreement. The Purchaser has consulted his or her own attorney, accountant or
investment advisor with respect to the investment contemplated hereby and its
suitability for the Purchaser, including the tax and other economic
considerations related to the investment.
(iv) The Purchaser (A) has knowledge and experience in
financial and business matters such that the Purchaser is capable of evaluating
the merits and risks of the purchase of the Shares as contemplated by this
Agreement, (B) understands and has taken cognizance of all risk factors related
to the purchase of the Shares and (C) is able to bear the economic risk of the
investment in the Shares for an indefinite period of time and can afford to
suffer a complete loss of the investment in the Shares.
(v) The Purchaser has been informed that the offer of
the Shares is being made pursuant to an exemption from the registration
requirements of the
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Securities Act, relating to transactions by an issuer not involving a public
offering, and that, consequently, the materials relating to the offer have not
been subject to review and comment by the staff of the Securities and Exchange
Commission or any other governmental authority.
(vi) This Agreement, when signed by or on behalf of the
Purchaser on the signature page hereof, shall be validly executed and delivered
on behalf of the Purchaser and shall be valid, binding and enforceable against
the Purchaser in accordance with its terms.
(vii) The Purchaser is not subscribing for the Shares as
a result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or any
solicitation of a subscription by a person not previously known to the Purchaser
in connection with investments in securities generally.
10. Miscellaneous.
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(a) Legends on Certificates. Any and all certificates now or
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hereafter issued evidencing the Shares shall have endorsed upon them a legend
substantially as follows:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS UPON TRANSFER AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THAT CERTAIN STOCK
SUBSCRIPTION AGREEMENT DATED AS OF _________, BY AND BETWEEN
XXXXXX'X TRADING COMPANY, INC., AN INDIANA CORPORATION, AND THE
ORIGINAL PURCHASER HEREOF, COPIES OF WHICH AGREEMENT ARE ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF XXXXXX'X TRADING COMPANY,
INC."
Such certificates shall also bear such legends and shall be subject to such
restrictions on transfer as may be necessary to comply with all applicable
federal and state securities laws and regulations.
(b) Further Assurances. Each party hereto agrees to perform
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any further acts and execute and deliver any documents which may be reasonably
necessary to carry out the intent of this Agreement.
(c) Notices. Except as otherwise provided herein, all
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notices, requests, demands and other communications under this Agreement shall
be in writing, and if by telegram or telecopy, shall be deemed to have been
validly served, given or delivered when sent, or if by personal delivery or
messenger or courier service, or by registered or certified mail, shall be
deemed to have been validly served, given or delivered upon actual delivery, at
the following addresses, telephone and facsimile numbers (or such other
address(es), telephone and facsimile numbers a party may designate for itself by
like notice):
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If to the Company:
Xxxxxx'x Trading Company, Inc.
0000 X. Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Controller
Telecopy: (000) 000-0000
If to Purchaser:
c/x Xxxxxx'x Trading Company, Inc.
0000 X. Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
With a copy to:
Ice Xxxxxx Xxxxxxx & Xxxx
Xxx Xxxxxxxx Xxxxxx
Xxx 00000
Xxxxxxxxxxxx, XX 46282
Attn: Xxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(d) Amendments. This Agreement may be amended only by a
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written agreement executed by both of the parties hereto and by FS Equity.
(e) Governing-Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
(f) Disputes. In the event of any dispute among the parties
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arising out of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party the reasonable expenses of the prevailing party
including, without limitation, reasonable attorneys' fees.
(g) Entire Agreement. This Agreement constitutes the entire
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agreement and understanding among the parties pertaining to the subject matter
hereof and supersedes any and all prior agreements, whether written or oral,
relating hereto.
(h) Recapitalizations or Exchanges Affecting the Company's
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Capital. The provisions of this Agreement shall apply to any and all stock or
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other securities of the Company or any successor or assign of the Company, which
may be issued in respect of, in exchange for or in substitution of, the Shares
by reason of any split, reverse split, recapitalization, reclassification,
combination, merger, consolidation or otherwise, and such Shares or other
securities shall be encompassed within the term "Shares" for purposes of this
Agreement and the Pledge Agreement.
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(i) No Rights as an Employee. Nothing in this Agreement
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shall give Purchaser any rights to continued employment or affect in any manner
whatsoever the rights of the Company to terminate Purchaser's employment for any
reason, with or without cause, subject to the terms and conditions of any
employment agreement to which Purchaser may be a party.
(j) Disclosure. The Company shall have no duty or obligation
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to affirmatively disclose to Purchaser, and Purchaser shall have no right to be
advised of, any material information regarding the Company at any time prior to,
upon or in connection with the Company's repurchase of the Shares under this
Agreement at the cessation or termination of Purchaser's employment with the
Company.
(k) Successors and Assigns. The Company may assign with
-----------------------
absolute discretion any or all of its rights and/or obligations and/or delegate
any of its duties under this Agreement to any of its affiliates, successors
and/or assigns and this Agreement shall inure to the benefit of, and be binding
upon, such respective affiliates, successors and/or assigns of the Company in
the same manner and to the same extent as if such affiliates, successors and/or
assigns were original parties hereto. Without limiting the foregoing, the
Company may assign the right of first refusal and/or the Repurchase Option
provided for in Section 3 and Section 4 of this Agreement, respectively, to any
of its affiliates, successors and/or assigns. FS Equity may assign its rights
under Section 5 to any FS Permitted Transferee or to a purchaser of shares of
Common Stock then owned by FS Equity. Except as expressly provided in Section
2(c) hereof, Purchaser may not assign any or all of his rights and/or
obligations and/or delegate any or all his duties under this Agreement without
the prior written consent of the Company and FS Equity. Upon an assignment of
any or all of Purchaser's rights and/or obligations and/or a delegation of any
or all of his duties under this Agreement in accordance with the terms of this
Agreement, this Agreement shall, if and to the extent set forth herein, inure to
the benefit of, and be binding upon, Purchaser's respective affiliates,
successors and/or assigns in the same manner and to the same extent as if such
affiliates, successors and/or assigns were original parties hereto.
(l) Headings. Introductory headings at the beginning of each
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section and subsection of this Agreement are solely for the convenience of the
parties and shall not be deemed to be a limitation upon or description of the
contents of any such section and subsection of this Agreement.
(m) Counterparts. This Agreement may be executed in two
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counterparts, each of which shall be deemed an original and both of which, when
taken together, shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
Xxxxxx'x Trading Company, Inc.,
an Indiana corporation
By:
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PURCHASER:
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