EXHIBIT 4.8
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT (the "Stock Purchase Agreement") is made and entered into as
of May 15, 2001 between XXXXX & XXXXX COMPANY, a Delaware corporation (the
"Company"), and XXXXX X. XXXXXXXX ("Executive").
WHEREAS, the Company and Executive have entered into an employment
agreement effective as of May 15, 2001 (the "Employment Agreement"), whereby
Executive will be President and Chief Executive Officer of the Company; and
WHEREAS, the Employment Agreement provides for the purchase of shares of
common stock of the Company, $.01 par value per share ("Shares" or "Common
Stock"), subject to the terms and conditions of a stock purchase agreement to be
entered into by the parties, in order to provide an opportunity to Executive to
acquire an equity ownership position in the Company on favorable terms, as an
incentive to contribute to the success of the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and terms hereafter set forth, it is agreed as follows:
1. Sale of Stock. The Company offers to sell to Executive, and hereby
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grants to Executive the right to buy, up to 125,000 Shares on August 13, 2001
(the "Purchase Date"); provided, that Executive continues in employment with the
Company from the date of this Stock Purchase Agreement through the Purchase
Date. In order to accept the Company's offer to purchase the Shares, Executive
shall deliver to the Company's Stock Administrator his written and signed
election to purchase the Shares in substantially the form attached hereto as
Exhibit A, by the Purchase Date. The Company's offer to sell Shares to
Executive, to the extent not accepted by the close of business on the Purchase
Date, shall expire at that time, unless the time for acceptance is extended by
action of the Board of Directors of the Company (the "Board").
2. Purchase Price. The purchase price per Share of the Shares sold to
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Executive hereunder (the "Purchased Shares") shall be a price which is $ .50
below "Fair Market Value" per share. "Fair Market Value" of a share of Common
Stock as of any given date shall mean: (i) the closing price of the Common
Stock on the New York Stock Exchange (as reported for regular trading hours and
not extended hours) on the trading day preceding such date. In determining the
Fair Market Value of the Common Stock, the Company may rely on the closing price
as reported in the New York Stock Exchange composite transactions published in
a) the Wall Street Journal; b) the Yahoo Finance internet site, or c) such
other reliable source of information as the Company deems appropriate.
3. Payment of the Purchase Price. The aggregate purchase price for the
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Shares purchased by Executive hereunder shall be paid by delivery to the Company
of cash or a cashier's or certified check within five business days of the
Purchase Date.
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4. Conditions to Issuance of the Purchased Shares. The following
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conditions apply as a prerequisite to the Company's obligation to issue any
Shares or deliver any certificate for Shares or other evidence of ownership of
Shares purchased by Executive hereunder:
(a) Executive understands and agrees that Executive's election
to purchase the Shares or any portion thereof, under the terms of this Stock
Purchase Agreement, shall be irrevocable and Executive agrees to make payment to
the Company for the Shares purchased. Executive represents that he has had full
access to information about the Company to the extent necessary for, and has
made, an informed investment decision. Executive warrants and represents that he
has not relied on any representations of the Company or its management regarding
the purchase of Shares hereunder except as expressly stated herein.
(b) Satisfactory arrangements must have been made for the
payment (in cash or via a reduction of the number of Shares issuable upon
purchase) by Executive of any federal, state and local taxes required to be paid
and/or withheld on account of purchase of the Shares.
(c) If, at the time of purchase of the Shares hereunder, there
is not in effect a registration statement registering the purchased Shares under
the Securities Act of 1933, as amended (the "1933 Act"), Executive acknowledges
and agrees that the Shares will be purchased only for investment and without any
present intention to sell or distribute such Shares, and otherwise in full
compliance with the terms and conditions of the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and all other applicable
federal and state securities laws, including regulations thereunder (the
"Securities Laws"). Executive further understands that the Securities Laws,
and/or the Company's compliance requirements thereunder, may impose restrictions
on transfer of the Shares acquired hereunder.
(d) The Company may, in its absolute discretion, also take
whatever additional actions it deems appropriate to effect compliance with the
Securities Laws, including, but not limited to, placing legends on shares
certificates and issuing stop-transfer orders to transfer agents and registrars.
(e) In the event that the election to purchase Shares hereunder
shall be exercised by any person or persons other than the Executive, the
Company is entitled to require proof, satisfactory to the Administrator, of the
right of such person(s) to do so.
(f) The Shares shall be admitted to listing on all stock
exchanges on which such class of stock is then listed; and
(g) Any registration or other qualification of the Shares under
any state or federal law or under the rulings or regulations of the Securities
and Exchange Commission or any other governmental regulatory body, which the
Company shall, in its absolute discretion, deem necessary or advisable, shall be
completed; and (h) Any approval or other clearance from any state or federal
governmental agency which the Company shall, in its absolute discretion,
determine to be necessary or advisable shall be obtained.
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5. Issuance of the Purchased Shares. The Shares issuable and deliverable
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upon Executive's election hereunder may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the Company.
Upon receipt of Executive's election to purchase Shares and payment therefor
under this Stock Purchase Agreement, the Company's Stock Administrator shall
arrange for issuance and delivery to Executive of certificates representing the
Shares. Executive understands and agrees that the Purchased Shares shall be
registered in his name and in certificated form.
6. Legends on Share Certificates. Executive understands and agrees that
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the Company shall cause legends in substantially the form set forth below to be
placed on the Share certificates evidencing ownership of the Purchased Shares,
together with any other legends that may be required by applicable state or
federal securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND MAY NOT BE OFFERED, ASSIGNED, SOLD, PLEDGED OR
HYPOTHECATED, OR OTHERWISE TRANSFERRED, UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
TRANSACTION IS IN COMPLIANCE WITH THE ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND REPURCHASE RIGHTS OF
THE ISSUER AS SET FORTH IN THE STOCK PURCHASE AGREEMENT
DATED MAY 15, 2001 BETWEEN THE ISSUER AND THE ORIGINAL
HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS AND REPURCHASE RIGHTS ARE BINDING ON THE
ORIGINAL HOLDER AND TRANSFEREES OF THESE SHARES.
7. Stop-Transfer Notices. Executive understands and agrees that the
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Company may issue appropriate "stop transfer" instructions to its transfer agent
in order to ensure compliance with the restrictions referred to in this Stock
Purchase Agreement with respect to the Purchased Shares.
8. Repurchase Right of the Company.
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(a) Subject to the provisions of Sections 8(b) and 8(c) below,
in the event that Executive's employment with the Company is terminated, whether
by the Company or by Executive, then the Company shall have the right,
commencing upon the date of such termination as reasonably fixed and determined
by the Company, to repurchase up to all of the Purchased Shares, at a repurchase
price equal to the purchase price per Share paid by Executive for the
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Shares (the "Repurchase Right"). Purchased Shares which are subject to the
Repurchase Right will hereafter be referred to as the "Unreleased Shares."
(b) The Company's Repurchase Right shall expire as to 33.33% of
the Purchased Shares (to the nearest whole Share) upon each anniversary of the
Purchase Date so long as Executive remains continuously employed with the
Company.
(c) Notwithstanding the foregoing provisions, in the following
events, the Company's Repurchase Right as to all Unreleased Shares will be
immediately extinguished:
(i) Following a "Change of Control." "Change of Control"
shall have the meaning set forth in the Employment Agreement, and such
definition is incorporated herein by reference;
(ii) if Executive terminates his employment with the
Company for "Good Reason." "Good Reason" shall have the meaning set forth in the
Employment Agreement, and such definition is incorporated herein by reference.
(iii) if Executive's employment with the Company is
terminated by the Company other than for "Cause." "Cause" shall have the meaning
set forth in the Employment Agreement, and such definition is incorporated
herein by reference.
9. Escrow of the Shares. To insure the availability for delivery of
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Unreleased Shares upon exercise of the Repurchase Right by the Company,
Executive hereby appoints the Secretary, or any other person designated by the
Company as escrow agent, as its attorney-in-fact to sell, assign and transfer
unto the Company, such Unreleased Shares, if any, repurchased by the Company
pursuant to the Repurchase Right and shall, upon execution of this Stock
Purchase Agreement, deliver and deposit with the Secretary of the Company, or
such other person designated by the Company, the share certificates representing
the Unreleased Shares, together with the stock assignment duly endorsed in
blank, attached hereto as Exhibit C-1. The Unreleased Shares and stock
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assignment shall be held by the Secretary in escrow, pursuant to the Joint
Escrow Instructions of the Company and Executive attached as Exhibit C-2 hereto,
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until the Company exercises its Repurchase Right as provided in Section 8, or
until such Unreleased Shares are no longer subject to the Repurchase Right, or
until such time as this Stock Purchase Agreement no longer is in effect. As the
Purchased Shares become no longer subject to the Repurchase Right, the escrow
agent shall promptly deliver to Executive the certificate or certificates
representing such Purchased Shares in the escrow agent's possession belonging to
the Executive, and the escrow agent shall be discharged of all further
obligations hereunder; provided, however, that the escrow agent shall
nevertheless retain such certificate or certificates as escrow agent if so
required pursuant to other restrictions imposed pursuant to this Stock Purchase
Agreement. The Company, or its designee, shall not be liable for any act it may
do or omit to do with respect to holding the Purchased Shares in escrow and
while acting in good faith and in the exercise of its judgment.
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10. Restrictions on Transfer of the Shares. Except for the escrow
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described in Section 9 hereunder, or transfer of the Shares to the Company or
its assignee or designee upon exercise of its Repurchase Right, none of the
Purchased Shares nor any beneficial interest therein shall be sold, transferred,
assigned, pledged, encumbered or otherwise disposed of in any way until the
release of such Shares from the Company's Repurchase Right in accordance with
the provisions of this Stock Purchase Agreement. Notwithstanding the foregoing,
the transfer of any or all of the Purchased Shares during Executive's lifetime
or on Executive's death by will or intestacy, or such a transfer to a member or
members of Executive's Immediate Family shall be exempt from the provisions of
this Section, provided that Executive notifies the Company in writing within
thirty (30) days of such transfer. An "Immediate Family" member shall mean a
parent, sibling, spouse or issue, spouses of such issue and any trust for the
benefit of, or the legal representative of, any of the preceding persons and/or
Executive, or any partnership substantially all of the partners of which are one
or more of such persons or Executive or any limited liability company
substantially all of the members of which are one or more of such persons or
Executive. The terms of this Stock Purchase Agreement shall be binding on and
shall inure to the benefit of, any valid transferee under these provisions. The
Company shall not be required to (a) transfer on its books any Shares that have
been transferred or pledged in violation of any of the provisions of this Stock
Purchase Agreement or (b) to treat as owner of such Shares or to accord the
rights of a stockholder to any transferee or pledgee to whom such shares shall
have been so transferred or pledged. Any such attempted transfer or pledge
shall be void.
11. Registration of the Shares. The Company agrees to register the
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Purchased Shares with the Securities and Exchange Commission under the 1933 Act,
at its expense, which registration shall be effective no later than the
expiration of the Company's Repurchase Right as to any of the Purchased Shares.
The Company agrees to maintain the effectiveness of such registration for such
period of time as shall be necessary to meet the purposes of this agreement.
Executive understands and agrees that registration of the Purchased Shares will
not eliminate certain restrictions on transfer of the Shares which may exist
under the Securities Laws, based upon Executive's possible status as an
"affiliate" of the Company, as that term is defined in the Securities Laws.
12. Taxes.
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(a) Election of Early Taxability under Section 83(b). Executive
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represents that he has reviewed with his own tax advisor the federal, state,
local and foreign tax consequences, if any, of this investment and the
transactions contemplated by this Stock Purchase Agreement. Executive further
represents that he has relied solely on such advisor and not on any statements
or representations of the Company or any of its agents with respect to tax
matters in connection with this agreement. Executive understand that Executive
(and not the Company) shall be responsible for Executive's tax liability that
may arise as a result of this investment or the transactions contemplated by
this Stock Purchase Agreement. Executive understands that Section 83 of the
Internal Revenue Code of 1986, as amended (the "Code"), taxes as ordinary income
the difference between the purchase price for the Shares and the Fair Market
Value of the Shares as of the date any restrictions on the Shares lapse. In
this context, "restriction" includes the Company's Repurchase Right. Executive
understands that he may elect to be taxed at the
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time the Shares are purchased rather than when the Company's Repurchase Right
expires by filing an election under Section 83(b) of the Code with the I.R.S.
within thirty (30) days of the Purchase Date. A form for making this election is
attached as Exhibit B hereto. Executive agrees to provide a copy of any such
election to the Company within 10 business days of filing it with the I.R.S.
EXECUTIVE ACKNOWLEDGES THAT IT IS EXECUTIVE'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO TIMELY FILE THE
ELECTION UNDER SECTION 83(b), EVEN IF EXECUTIVE REQUESTS
THAT THE COMPANY MAKE THIS FILING ON BEHALF OF EXECUTIVE.
(b) Withholding. Upon the recognition by Executive of taxable
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compensation income related the purchase of Shares at a discount hereunder,
Executive shall make arrangements satisfactory to the Company to satisfy the
obligation to withhold income and employment taxes from such recognized income,
which shall include, Full payment (in cash or by check) of the amount that must
be withheld by the Company for federal, state and/or local tax purposes.
13. Exercise of the Company's Repurchase Right.
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(a) The Company's Repurchase Right may be exercised upon
authorization of the Board, and by the Corporate Officer or Officers of the
Company to whom the Board has delegated the authority to effect the repurchase
of the Shares.
(b) The Company's Repurchase Right may be exercised for a period of
sixty days following the date of Executive's termination of employment as set
forth in Section 4(a) above. In order to exercise such Repurchase Right, the
authorized Corporate Officer of the Company must deliver written notice to the
Executive or the Executive's personal representative of the Company's intention
to purchase a designated number of the Unreleased Shares, with a copy to the
escrow agent referred to in Section 9 above, accompanied by: a) a check in the
amount of the aggregate repurchase price; b) a notice to Executive that the
Company has canceled and forgiven an amount of indebtedness (accrued interest
first, and then outstanding principal) of Executive to the Company equal to the
aggregate repurchase price; or c) a combination of a) and b) so that the
combined payment and cancellations of indebtedness equals such aggregate
repurchase price. Upon delivery of such notice and the payment of the aggregate
repurchase price, the Company shall become the legal and beneficial owner of the
Shares being repurchased and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its own
name the number of Shares being repurchased by the Company, or the right to
cancel such Shares.
14. Release of the Purchased Shares. Upon extinguishment of the Company's
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Repurchase Right with respect to any portion of the Purchased Shares pursuant to
Section 4 above, the Shares so released shall be delivered to Executive at such
address as shall be requested by Executive in writing to the Company's Stock
Administrator. Executive shall submit the certificates representing the Shares
to be released to the Company's Stock Administrator for
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reissuance without the restrictive legends relating to the Company's Repurchase
Right. The Company's Stock Administrator will promptly arrange for reissuance of
the certificates without such legend and delivery to Executive.
15. Adjustments in the Shares. The Shares available for purchase under
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this Stock Purchase Agreement shall be appropriately adjusted (as to number and
kind of securities, and purchase price) as determined by the Board in the event
that the Company's Common Stock is changed into or exchanged for a different
number or kind of shares of the Company or other securities of the Company by
reason of merger, consolidation, recapitalization, reclassification, stock
split-up, stock dividend, combination of shares or otherwise, to the end that
after such event, Executive's proportionate interest shall be maintained as
before the occurrence of such event. Such adjustment in Shares available for
purchase shall be made without change in the total price applicable to the
Company's offer herein (except for any change in the aggregate price resulting
from rounding-off of share quantities or prices). Any such adjustment made by
the Board shall be final and binding upon Executive, the Company and all other
interested persons.
16. Transfer of the Company's Rights and Obligations Hereunder. Subject
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to the provisions of Section 8(c)(1) hereunder, the Company is entitled to
transfer its rights and obligations under this Stock Purchase Agreement to one
or more persons or entities, and all covenants and agreements hereunder shall
inure to the benefit of, and be enforceable by the Company's successors and
assigns. If the Company undergoes a Change of Control, then the Company shall
use its best efforts to cause any surviving corporation or entity or acquiring
corporation or entity, or affiliate of such corporation or entity, to assume the
Company's obligations under this Stock Purchase Agreement, but such successor or
assign may substitute similar stock awards (including an award to acquire the
same consideration paid to the stockholders in the Change of Control
transaction) for Company's offer herein.
17. Rights as a Stockholder. Executive shall not be, nor have any of the
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rights or privileges of, a stockholder of the Company in respect of any shares
purchasable upon the exercise of his right to purchase Shares hereunder unless
and until such Shares have been issued by the Company to Executive.
18. Rights to Continuation of Employment. Executive acknowledges and
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understands that the benefits conferred upon Executive hereunder do not
constitute an express or implied promise of continued employment with the
Company, and that this Stock Purchase Agreement shall not be construed as
obligating the Company to employ or retain Executive for any specific period of
time.
19. Disputes. Any dispute arising in connection with this Stock Purchase
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Agreement shall be finally determined and settled by arbitration. Arbitration
shall be initiated by one party making written demand upon the other party and
simultaneously filing the demand together with required fees in the office of
the American Arbitration Association in New York, New York. The arbitration
proceeding shall be conducted in New York, New York by a single arbitrator in
accordance with the Expedited Procedures of the Employment Dispute Resolution
Rules of the American Arbitration Association, except as otherwise provided
herein. Except as required by the arbitrator, the parties shall have no
obligation to comply with discovery requests made in the
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arbitration proceeding. The arbitration award shall be a final and binding
determination of the dispute and shall be fully enforceable as an arbitration
award in any court having jurisdiction and venue over such parties.
20. No Waiver; Severability. Either party's failure to enforce any
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provision hereunder shall not in any way be construed as a waiver of any such
provision, nor prevent that party from thereafter enforcing such provision
and/or any other provision of this agreement. The invalidity of any provision
of this Stock Purchase Agreement shall not in any manner affect the validity or
enforceability. of any other provisions hereof.
21. Notice. Any notice to be given under the terms of this Stock Purchase
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Agreement to the Company shall be addressed to the Company in care of its Stock
Administrator, 0000 X. Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxxx, XX 00000; Ph.
000-000-0000, fax: 000-000-0000; with a copy to the General Counsel, 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000; and any notice to be given to
Executive shall be addressed to him at his address of record on file with the
Company, with a copy to his attorney, Xxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxx &
Brandeis, LLP, 000 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, XX 00000-0000. By a
notice given pursuant to this Section, either party may hereafter designate a
different address for notices to be given to him. Any notice which is required
to be given to the Executive shall, if Executive is then deceased, be given to
Executive's personal representative if such representative has previously
informed the Company of his status and address by written notice under this
Section. Any notice to any party will be effective upon receipt (or refusal of
receipt), and shall be in writing and delivered personally or sent by telecopy
or certified or registered mail, postage prepaid.
22. Compliance with Laws. The Stock Purchase Agreement and the offer,
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sale, issuance and delivery of Shares and the payment of the purchase price
thereunder are subject to compliance with all applicable federal and state
laws, rules and regulations (including but not limited to Securities Laws and
federal margin requirements) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities delivered
pursuant to the Stock Purchase Agreement shall be subject to such restrictions,
and the person acquiring such securities shall, if requested by the Company,
provide such assurances and representations to the Company as the Company may
deem necessary or desirable to assure compliance with all applicable legal
requirements. To the extent permitted by applicable law, the Stock Purchase
Agreement and the Shares offered and sold hereunder shall be deemed amended to
the extent necessary to conform to such laws, rules and regulations.
23. Titles. Titles are provided herein for convenience only and are not
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to serve as a basis for interpretation or construction of this Agreement.
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24. Governing Law; Entire Agreement; Amendments. This Agreement shall be
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administered, interpreted and enforced under the internal laws of the State of
Delaware, without regard to conflicts of laws thereof. This Stock Purchase
Agreement represents the entire agreement between the parties with respect to
the purchase of Common Stock by Executive as outlined in his employment
agreement with the Company, and supersedes all prior understandings of the
parties with regard thereto. In the event of a conflict between the provisions
of his employment agreement with the Company and this Stock Purchase Agreement,
the terms of the Stock Purchase Agreement shall prevail. This Stock Purchase
Agreement may not be modified except in a writing signed by both parties.
This Agreement may be executed in a number of counterparts, each of which
shall be deemed an original for all purposes, and all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, this Stock Purchase Agreement has been executed by the
parties as indicated below.
EXECUTIVE XXXXX & XXXXX COMPANY
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Chairman of the Board
Date: June 5, 2001
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Date: June 5, 2001
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ATTEST:
Residence Address:
0 Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxxxxxx
XxxxXxxx, XX 00000 --------------------------
Xxxxx Xxxxxxxxxxx
Assistant Secretary
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EXHIBIT A
EXECUTIVE'S ELECTION TO PURCHASE SHARES
To: Stock Administrator
Xxxxx & Xxxxx Company
0000 X. Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Ph. 000.000.0000
FAX 000.000.0000 (a faxed election must be followed by delivery of the
original)
I hereby elect to purchase _____________________________ Shares of Common
Stock of Xxxxx & Xxxxx Company (the "Company") pursuant to the terms of the
Stock Purchase Agreement entered into as of May 15, 2001 between the Company and
me, at a purchase price per Share calculated at the Fair Market Value (as
defined in the Stock Purchase Agreement) per share on August 13, 2001, less
$.50 per share. I agree to provide payment of the aggregate purchase price by
the close of business on August 17, 2001. I understand that the certificates
representing the Shares purchased will be registered in my name. Please deliver
the Share certificates to the following address, which will be the address of my
stock account with the Company's stock transfer agent and registrar:
Xxxxx X. Xxxxxxxx
____________________________________
____________________________________
____________________________________
I hereby certify that my social security number is ____________________.
_________________________________________
Xxxxx X. Xxxxxxxx
Date_____________________________________
EXHIBIT B
SECTION 83(b) ELECTION
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the Regulations promulgated
thereunder:
1. The name, address and taxpayer identification number of the undersigned are:
Xxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
SSN: _______________________
2. Description of property with respect to which the election is being made:
_________ shares of Common Stock of Xxxxx & Xxxxx Company (the
"Company"), $ .01 par value per share.
3. The date on which and taxable year in which the property was transferred to
taxpayer:
August 13, 2001.
Taxpayer's applicable tax year: the 2001 calendar year.
4. The nature of the restriction(s) to which the property is subject is:
If the undersigned taxpayer's employment with the Company is
terminated under certain circumstances prior to August 13, 2004, then the
Company has the right to repurchase the shares at the purchase price paid by
taxpayer. This repurchase right expires as to one-third of the shares annually,
upon continuation of the taxpayer's employment.
The shares which are subject to the Company's repurchase rights are
non-transferable except to members of taxpayer's immediate family and except
upon death by will or the laws of descent and distribution.
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5. Fair market value of the property:
The fair market value at the time of transfer to taxpayer (determined
without regard to any restrictions other than restrictions which by their terms
will never lapse) of the property with respect to which this election is being
made is $________ per share.
6. Amount paid for the property:
$ _______ per share.
7. A copy of this statement has been furnished to Xxxxx & Xxxxx Company, the
undersigned's employer.
TAXPAYER
Date:_____________________ ____________________________
Xxxxx X. Xxxxxxxx
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EXHIBIT C-1
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, ________________, hereby sell, assign and transfer
unto ________________________________________________(__________) shares of the
common stock, par value $.01 per share, of Xxxxx & Xxxxx Company standing in my
name of the books of said corporation represented by Certificate No. _____
herewith and do hereby irrevocably constitute and appoint_______________________
_____________________________________________ to transfer the said stock on the
books of the within named corporation with full power of substitution in the
premises.
This Stock Assignment may be used only in accordance with the Stock
Purchase Agreement between Xxxxx & Xxxxx Company and the undersigned dated
______________, _____.
Dated: _______________, _______________
Signature:______________________________
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EXHIBIT C-2
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JOINT ESCROW INSTRUCTIONS
August 13, 2001
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Escrow Agent
Xxxxxx X. Xxxxxx
Corporate Secretary of Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Dear Xx. Xxxxxx:
As Escrow Agent for Xxxxx & Xxxxx Company (the "Company") and the
undersigned Xxxxx X. Xxxxxxxx (the "Executive"), you are hereby authorized and
directed to hold the documents delivered to you pursuant to the terms of that
certain Stock Purchase Agreement ("Agreement") between the Company and the
undersigned, in accordance with the following instructions:
1. Executive irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of common stock of the Company (the "Purchased
Shares") to be held by you hereunder and any dividends, additions and
substitutions to said shares (the "Retained Distributions") as defined in the
Agreement. Executive does hereby irrevocably constitute and appoint you as
Executive's attorney-in-fact and agent for the term of this escrow to execute
with respect to such Purchased Shares all documents necessary or appropriate to
make such securities negotiable and to complete any transaction herein
contemplated, including but not limited to the filing with any applicable state
blue sky authority of any required applications for consent to, or notice of
transfer of, the securities. Subject to the provisions of the Agreement and
paragraph 2, Executive shall exercise all rights and privileges of a stockholder
of the Company while the Purchased Shares are held by you.
2. In the event that you are provided notice by the Company that the
Executive has terminated employment with the Company and the Purchased Shares
held hereunder have been repurchased pursuant to the Repurchase Right under the
Agreement, you are directed to transfer the Purchased Shares and all Retained
Distributions allocable thereto to the Company.
3. The Company shall notify you at such time and as to the amount of
Purchased Shares which are no longer subject to the Repurchase Right and you
will deliver to Executive a certificate or certificates representing that many
shares of stock to Executive.
4. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Executive,
you shall deliver all of the same to Executive and shall be discharged of all
further obligations hereunder.
5. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
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6. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Executive while acting in
good faith, and any act done or omitted by you pursuant to the advice of your
own attorneys shall be conclusive evidence of such good faith.
7. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
In case you obey or comply with any such order, judgment or decree, you shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
8. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
9. You shall not be liable for the expiration of any rights under any
applicable state, federal or local statute of limitations or similar statute or
regulation with respect to these Joint Escrow Instructions or any documents
deposited with you.
10. You shall be entitled to employ such legal counsel and other experts
as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall resign by written notice to each party or if you cease to be an employee
of the Company. In the event of any such termination, the Company shall appoint
a successor Escrow Agent.
12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
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14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by ten
(10) days' advance written notice to each of the other parties hereto.
COMPANY: Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
EXECUTIVE: Xxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
ESCROW AGENT: Corporate Secretary of Xxxxx & Xxxxx Company
15. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
16. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
17. These Joint Escrow Instructions shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, excluding
that body of law pertaining to conflicts of law.
EXECUTIVE XXXXX & XXXXX COMPANY
__________________________ By:_______________________________________
Xxxxx X. Xxxxxxxx
Title:____________________________________
ESCROW AGENT
__________________________________________
Xxxxxx X. Xxxxxx
Corporate Secretary, Xxxxx & Xxxxx Company
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