EXHIBIT 10.13
EXECUTION COPY
MANAGEMENT CONTRIBUTION AGREEMENT, dated as of April 7, 2004 (this "Agreement"),
by and between AC SAFETY HOLDING CORP., a Delaware corporation (the
"Corporation"), and the CONTRIBUTOR whose name is set forth on the signature
page hereto (the "Contributor").
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of March 10,
2004 as amended, supplemented or restated from time to time, (the "Merger
Agreement"), by and among the Corporation, its wholly owned subsidiary AC Safety
Acquisition Corp., a Delaware corporation ("Acquisition"), and Aearo
Corporation, a Delaware corporation ("Aearo"), Acquisition will merge with and
into Aearo, with Aearo being the surviving corporation and a wholly owned
subsidiary of the Corporation (the "Merger");
WHEREAS, in connection with the Merger, the Contributor desires to
contribute, assign, convey, transfer and deliver to the Corporation, and the
Corporation desires to purchase, the number of shares of common stock, par value
$0.01 per share, of Aearo set forth on the signature page hereto (the
"Contributed Shares") valued at the dollar amount listed immediately below the
Number of Contributed Shares on the signature page hereto, subject to the terms
and conditions and for the Consideration Shares (as defined below) set forth
herein (the "Contribution");
WHEREAS, in connection with the Merger, the Corporation desires to issue to
the Contributor, and the Contributor desires to purchase from the Corporation,
the number of shares set forth on the signature page hereto of (i) the
Corporation's common stock, $0.01 par value per share (the "Common Stock"), and
(ii) the Corporation's Series A Preferred Stock, $0.01 par value per share (the
"Preferred Stock"), subject to the terms and conditions and in return for the
Contributed Shares as set forth herein; and
WHEREAS, the Contributor agreed to enter into this Agreement as an
inducement for Corporation to enter into the Merger Agreement and the other
agreements contemplated thereby and the Contributor hereby agrees to be bound by
the terms and provisions hereof, including, without limitation, the restrictions
contained herein, as an inducement for Corporation to enter into this Agreement
and to consummate the Merger and the other transactions contemplated by the
Merger Agreement.
NOW THEREFORE, in consideration of the mutual promises herein made, and in
consideration of the representations, warranties, and covenants herein
contained, the Corporation and the Contributor hereby agree as set forth below.
ARTICLE I
CONTRIBUTION AND ISSUANCE OF CONSIDERATION SHARES;
CONTRIBUTION CLOSING; DELIVERABLES
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1.1 CONTRIBUTION OF CONTRIBUTION SHARES; ISSUANCE OF THE CONSIDERATION SHARES.
(a) In accordance with, and subject to, the provisions of this Agreement,
at the Contribution Closing, (i) the Contributor shall contribute, assign,
transfer, convey and deliver to the Corporation the Contributed Shares, free and
clear of all Encumbrances and the Corporation shall acquire the Contributed
Shares for the consideration set forth in this Section 1.1 and (ii) the
Corporation shall issue, sell and deliver the number of shares of Common Stock
and Preferred Stock to the Contributor as set forth on the signature page hereto
(collectively, the "Consideration Shares").
(b) Subject to the terms and conditions contained herein, each party shall
use commercially reasonable efforts to take or cause to be taken all actions and
do or cause to be done all things required under all applicable Laws, in order
to consummate the transactions contemplated by this Agreement.
1.2 CONTRIBUTION CLOSING; DELIVERABLES.
(a) The closing (the "Contribution Closing") with respect to the
Contribution shall take place at the offices of O'Melveny & Xxxxx LLP, Times
Square Tower, 0 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000. The Contribution Closing shall
occur on the Closing Date immediately prior to the consummation of the Merger
and the other transactions contemplated by the Merger Agreement (such date, the
"Contribution Closing Date").
(b) At the Contribution Closing, the Corporation shall deliver to the
Contributor:
(i) certificates representing the number of Consideration Shares set
forth on the signature page attached hereto registered in the name of the
Contributor;
(ii) a counterpart to this Agreement duly executed by the Corporation;
(iii) a counterpart to the Buyer Support Agreement, dated as of the
Closing Date (the "Buyer Support Agreement"), among the Corporation, Bear
Xxxxxxx Merchant Banking Partners II, L.P., Vestar Equity Partners, L.P.
and the other stockholders of the Corporation whose names are set forth on
the signature pages thereto; and
(iv) a counterpart to the Stockholders' Agreement, dated as of the
Contribution Closing Date (the "Stockholders' Agreement"), among the
Corporation and the other parties thereto, duly executed by the
Corporation.
(c) At the Contribution Closing, the Contributor shall deliver to the
Corporation:
(i) one or more certificates representing the number of Contributed
Shares set forth on the signature page attached hereto (or an affidavit of
lost certificate with respect to such Contributed Shares, in form and
substance reasonably satisfactory to the Corporation);
(ii) a counterpart to this Agreement duly executed by the Contributor;
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(iii) a counterpart to the Buyer Support Agreement;
(iv) a counterpart to the Stockholders' Agreement duly executed by the
Contributor; and
(v) if applicable, a Spousal Acknowledgment and Consent as required by
the Stockholders' Agreement duly executed by the spouse of the Contributor.
1.3 SECTION 351 TRANSACTION.
The Corporation and the Contributor agree that the transaction effected
hereby is entered into in connection with the transaction contemplated by (i)
the Merger Agreement, (ii) the Securities Purchase Agreement, dated as of the
date hereof, by and among the Corporation and the Purchasers parties thereto,
(iii) the Management Contribution Agreements, dated as of the date hereof, by
and between the Corporation and the Contributors whose names are set forth on
the signature pages thereto and (iv) the Management Subscription and
Contribution Agreements, dated as of the date hereof, by and between the
Corporation and the Purchasers whose names are set forth on the signature pages
thereto (collectively, the "Related Transactions"), and is intended to, together
with the Related Transactions, constitute a single transaction under Section 351
of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder (collectively, "Section 351"), so that the Contributors,
along with any other party receiving shares of capital stock in the Corporation
pursuant to the Related Transactions, are treated as contributing property to
the Corporation in exchange for its shares of capital stock and controlling the
Corporation under Section 351 immediately after the Related Transactions are
effected. The Corporation and the Contributor shall report the transaction
effected hereby as a contribution under Section 351, and not take any position
inconsistent with such treatment.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
As a material inducement to the Contributor to enter into and to perform
his obligations under this Agreement, the Corporation represents and warrants to
the Contributor as of the date hereof as set forth below.
2.1 ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER.
The Corporation is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite power and
authority to own, lease and operate its properties and assets and to carry on
its business as presently being conducted. The Corporation is qualified or
licensed to do business and is in good standing in every jurisdiction in which
the failure to so qualify, be licensed or be in good standing, individually or
in the aggregate, could have a material adverse effect on the Corporation.
2.2 AUTHORIZATION; ISSUANCE OF CONSIDERATION SHARES.
(a) The Corporation has all requisite power and authority to execute and
deliver this Agreement and any and all instruments necessary or appropriate in
order to effectuate fully the
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terms and conditions of this Agreement, and the transactions contemplated
hereby. This Agreement has been duly authorized by all necessary action
(corporate or otherwise) on the part of the Corporation and this Agreement has
been duly executed and delivered by the Corporation and constitutes the valid
and legally binding obligation of the Corporation, enforceable in accordance
with its terms and conditions, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(b) The authorization, issuance, sale and delivery of the Consideration
Shares have been duly authorized by all requisite action of the Corporation's
board of directors (the "Board"). The Consideration Shares will be validly
issued and outstanding, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof, free and clear of any Encumbrances
whatsoever and with no restrictions on the voting rights thereof and other
incidents of record and beneficial ownership pertaining thereto, in each case,
created by the Corporation, other than as contemplated by the Stockholders'
Agreement.
(c) The execution, delivery and performance of this Agreement by the
Corporation and the consummation of the transactions contemplated hereby shall
not (i) violate any Law applicable to the Corporation or any of its assets or
(ii) conflict with, or result in any breach of, any of the terms, conditions or
provisions of, or constitute (with due notice or lapse of time, or both) a
default or give rise to any right of termination, cancellation or acceleration,
or result in the creation of any Encumbrance (A) upon any of the Corporation's
assets or (B) under any provision of (i) the Corporation's certificate of
incorporation or bylaws, (ii) any Permit or (iii) any other Contract to which
the Corporation is a party or by which its Assets is or may be bound. The
Corporation has not been and is not required to give any notice to, or make any
filing with, any Governmental Authority or any other Person, or obtain any
Permit, in each case, for the valid execution, delivery and performance by the
Corporation.
2.3 CAPITALIZATION OF THE CORPORATION.
(a) Immediately after the Closing, the authorized capital stock of the
Corporation shall consist of 4,000,000 shares, of which (i) 3,849,999 shares
will be Common Stock, of which (A) 2,510,499 shares will be issued and
outstanding, fully paid and nonassessable and (B) 633,923 shares will be
reserved for issuance pursuant to the Corporation's 2004 Stock Incentive Plan,
(ii) one share will be Class A Common Stock, of which one share will be issued
and outstanding, fully paid and nonassessable, and (iii) 150,000 shares of
preferred stock, $0.01 par value per share, of which 76,000 shares will be
designated as Series A Preferred Stock, 75,188 shares of which will be issued
and outstanding, fully paid and nonassessable.
(b) Except as described in Section 2.3(a) and as contemplated by the
Stockholders' Agreement, there are no (i) outstanding warrants, options,
agreements, convertible securities or other commitments or instruments pursuant
to which the Corporation is or may become obligated to issue or sell any shares
of its capital stock or other securities or (ii) preemptive or similar rights to
purchase or otherwise acquire shares of the capital stock or other securities of
the Corporation.
2.4 OFFERING EXEMPTION.
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Assuming the accuracy of the representations and warranties of the
Contributor made in Article III, the offering, sale and issuance of the
Consideration Shares has been, is, and will be, exempt from registration under
the Securities Act of 1933, as amended, and the rules and regulations in effect
thereunder (the "Securities Act"), and such offering, sale and issuance is also
exempt from registration under applicable state securities and "blue sky" laws.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR
As a material inducement to the Corporation to enter into and perform its
obligations under this Agreement, the Contributor represents and warrants to the
Corporation as of the date hereof as set forth below.
3.1 VALID TITLE; POWER AND AUTHORITY; NO CONFLICTS.
(a) The Contributor beneficially owns and has valid title of record to the
Contributed Shares, free and clear of any Encumbrance, subject only to
restrictions as to marketability imposed by securities laws.
(b) Subject only to restrictions as to marketability imposed by securities
laws, the Contributor has full right, power, authority and capacity and all
approvals required by Law, if any, to sell, transfer, assign and deliver the
Contributed Shares hereunder and to enter into this Agreement, and the
Corporation will acquire valid title to the Contributed Shares, free and clear
of any Encumbrance, upon the consummation of the transactions contemplated by
this Agreement.
(c) The Contributor has all requisite power and authority to execute and
deliver this Agreement and any and all instruments necessary or appropriate in
order to effectuate fully the terms and conditions of this Agreement and to
perform and consummate such Contributor's obligations hereunder. This Agreement
and the performance of the Contributor's obligations hereunder, have been duly
authorized by all requisite action on the part of the Contributor, and this
Agreement has been duly and validly executed and delivered by the Contributor
and constitutes a valid and legally binding obligation of the Contributor,
enforceable against the Contributor in accordance with its terms and conditions,
except as enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency or other Laws affecting creditors' rights generally
or by general principles of equity.
(d) The execution, delivery and performance by the Contributor of this
Agreement, and the consummation of the transactions contemplated hereby, shall
not (i) violate any Law applicable to the Contributor or (ii) conflict with or
result in any violation or breach of, any of the terms, conditions or provisions
of, or constitute (with due notice or lapse of time, or both) a default under,
or give rise to any right of termination, cancellation or acceleration or result
in the creation of any Encumbrance upon any of the assets of the Contributor,
any Contracts to which the Contributor is a party or by which the Contributor or
any of the Contributor's assets is or may be bound, in each case, which would
prohibit the Contributor from consummating the transactions contemplated hereby.
The Contributor has not been or is not required to give any
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notice to, or make any filing with, any Governmental Authority or any other
Person, or obtain any Permit, in each case, for the valid execution, delivery
and performance by the Contributor of this Agreement.
3.2 CERTAIN INVESTMENT REPRESENTATIONS.
(a) The Contributor is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D under the Securities Act.
(b) The Contributor is acquiring the Consideration Shares for investment
for the Contributor'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 the Stockholders Agreement and as permitted by law, including
without limitation the Securities Act. The Contributor does not have any present
intent to resell or distribute all or any part of its Consideration Shares. If
the Contributor is a corporation, trust, partnership or other organization, it
was not organized for the specific purpose of acquiring the Consideration
Shares.
(c) The Contributor has been advised that the Consideration Shares have not
been registered under the Securities Act, that the Consideration Shares may not
be sold or otherwise disposed of unless they are registered thereunder or an
exemption from registration is available and that accordingly the Contributor
may be required to bear the economic risk of the investment in the Consideration
Shares for an indefinite period of time. The Contributor also understands that
the Corporation does not have any intention of registering the Consideration
Shares under the Securities Act or of supplying the information which may be
necessary to enable the Contributor to sell Consideration Shares pursuant to
Rule 144 under the Securities Act.
(d) The Contributor has been given the opportunity to obtain any
information or documents, and to ask questions and receive answers about such
documents, the Corporation and its subsidiaries and the business and prospects
of the Corporation and its subsidiaries (including, without limitation, the
transactions to be consummated pursuant to the terms of the Merger Agreement) as
it deems necessary to evaluate the merits and risks related to its investment in
the Consideration Shares and no representations concerning such matters or any
other matters related to such investment have been made to the Contributor
except as set forth in this Agreement. The Contributor has had the opportunity
to consult its own attorney, accountant or investment advisor with respect to
the investment contemplated hereby and its suitability for the Contributor,
including the tax and other economic considerations related to the investment.
(e) The Contributor (i) has knowledge and experience in financial and
business matters such that the Contributor is capable of evaluating the merits
and risks of the purchase of the Consideration Shares as contemplated by this
Agreement, (ii) understands and has taken cognizance of all risk factors related
to the purchase of the Consideration Shares and (iii) is able to bear the
economic risk of the investment in the Consideration Shares for an indefinite
period of time and can afford to suffer a complete loss of the investment in
such Consideration Shares.
(f) The Contributor has been informed that the offer of the Consideration
Shares is being made pursuant to an exemption from the registration requirements
of the Securities Act relating to transactions by an issuer not involving a
public offering, and that, consequently, the
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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.
(g) The Contributor is not subscribing for the Consideration Shares as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspapers, 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
Contributor in connection with investments in securities generally.
(h) Each party hereby acknowledges, to the extent applicable, that
simultaneous with the consummation of the transactions contemplated by the
Merger Agreement, including without limitation the transactions contemplated by
this Agreement, the Contributor Loan Balance (as hereinafter defined) shall be
repaid in full by wire transfer of immediately available funds and/or by
directing Aearo to set off and net such Contributor Loan Balance against any
amounts the Contributor would otherwise be entitled to receive in connection
with the Merger to the Corporation, on behalf and in the name of the
Corporation. For purposes of this Section 3.2(h), the "Contributor Loan Balance"
shall mean the outstanding principal amount and interest owed by the Contributor
to the Corporation pursuant to a promissory note executed pursuant to an
Executive Security Purchase Agreement in connection with the purchase of the
Contributed Shares by the Contributor in the amount set forth on the signature
page hereto adjacent to the words "Contributor Loan Balance."
ARTICLE IV
SECURITIES LAW COMPLIANCE; LEGENDS
4.1 STOCKHOLDERS' AGREEMENT; RESTRICTIVE LEGENDS.
(a) The Contributor hereby acknowledges and agrees that the Consideration
Shares shall be subject to the Stockholders' Agreement, which is being executed
and delivered by the Contributor on the Contribution Closing Date.
(b) The Consideration Shares shall be subject to the Stockholders'
Agreement, including, without limitation, the legending requirements set forth
therein and shall bear the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO DISTRIBUTION OR RESALE. THESE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH
SECURITIES UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS, OR THE AVAILABILITY, IN THE OPINION
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OF COUNSEL, OF AN EXEMPTION FROM REGISTRATION THEREUNDER."
4.2 REMOVAL OF LEGENDS, ETC.
Except as otherwise set forth in the Stockholders' Agreement, the legends
and restrictions imposed by Section 4.1 shall cease and terminate when (a) any
such Consideration Shares are sold or otherwise disposed of in accordance with
the intended method of disposition by the seller or sellers thereof set forth in
a registration statement or are sold or otherwise disposed of in a transaction
which does not require that the securities transferred bear the legends set
forth in Section 4.1, or (b) the holder of such Consideration Shares has met the
requirement for transfer of such Consideration Shares pursuant to the Securities
Act. Whenever the restrictions imposed by Section 4.1 shall terminate, as herein
provided, the holder of any Consideration Shares shall be entitled to receive
from the Corporation, without expense, a new certificate not bearing the
restrictive legend set forth in Section 4.1 and not containing any other
reference to the restrictions imposed by Section 4.1.
ARTICLE V
NON-COMPETITION; NON-SOLICITATION
5.1 NON-COMPETITION.
(a) As an inducement for the Corporation entering into the Merger
Agreement, as consideration for the right to make the investment contemplated by
this Agreement and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the undersigned Contributor hereby covenants and
agrees that during the period commencing on the Contribution Closing Date and
ending on the third anniversary thereof (the "Non-Compete Termination Date," and
such period (as may be extended pursuant to Section 5.1(b)) below, the
"Non-Compete Period"), such Contributor will not, directly or indirectly, either
as principal, manager, agent, consultant, officer, stockholder, partner,
investor, lender or employee or in any other capacity, carry on, be engaged in
or have any financial interest in, any business which is in competition with the
business of the Corporation or any of its subsidiaries or any group, division or
Affiliate of the Corporation who is engaged in the same business or businesses
as the Corporation or any of its Affiliates (the "Restricted Group") at any time
during the Non-Compete Period. For purposes of this Section 5.1, a business will
be deemed to be in competition with the Restricted Group if, at any time during
the Non-Compete Period, it is involved in the sale, or other dealing in any
property or the rendering of any service sold, dealt in or rendered by the
Restricted Group as a part of the business of the Corporation or any of its
subsidiaries during the Non-Compete Period within the same geographic area in
which the Restricted Group effects such sales or dealings or renders such
services. Nothing in this Section 5.1 will be construed so as to preclude the
Contributor from (a) investing in any publicly-held company, provided his
beneficial ownership of any class of such company's securities does not exceed
5% of the outstanding securities of such class, (b) working in any sector of the
safety industry where neither the Corporation nor any subsidiary thereof is (i)
marketing or manufacturing products or (ii) to the knowledge of the Contributor,
acquiring, establishing or planning to acquire or establish a company that
markets or manufactures such products in that sector of the market or
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(c) working for any employer if (i) such employer's aggregate revenues during
the then immediately preceding twelve (12) months derived from operations which
are in competition with the Restricted Group represent less than 10% of such
employer's gross revenues and the Contributor does not provide any services
directly or indirectly for such competing operations or (ii) the Restricted
Group has de minimis revenues resulting from businesses that are in competition
with such employer.
(b) The Corporation may extend the Non-Compete Termination Date to the
fifth anniversary of the Contribution Closing Date in the event that the
Corporation repurchases all of the Consideration Shares from the Contributor
prior to the fifth anniversary of the Contribution Closing Date. Notwithstanding
the foregoing, the Corporation may only exercise its right to extend the
Non-Compete Period if it pays the cash purchase price for the Consideration
Shares within 60 days of (i) the repurchase of such shares by the Corporation or
(ii) the determination of the fair market value of such shares (as determined by
the Board in good faith).
5.2 NON-SOLICITATION.
As an inducement for the Corporation entering into the Merger Agreement, as
consideration for the right to make the investment contemplated by this
Agreement and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the undersigned Contributor hereby covenants and
agrees that during the period commencing on the Contribution Closing Date and
ending five (5) years from such date (the "Non-Solicit Termination Date"), such
Contributor will not, directly or indirectly, on his own behalf or on behalf of
any person, firm or company, hire any person who has been employed by any member
of the Restricted Group at any time during the twenty-four (24) month period
immediately preceding such hiring, or solicit or induce any such employee or any
customer of the Restricted Group to leave the employ of, or cease doing business
with, as applicable, the Restricted Group, or interfere, in any material way,
with the business of the Restricted Group. For purposes of clarification, this
Section 5.2 shall not apply to any action taken solely by any of the
Contributor's employers following the date of written notice of such
Contributor's termination of employment if (i) such Contributor did not provide
any assistance or recommendation for the benefit of such future employer
relating to the solicitation or hiring of any person referred to above and (ii)
such person referred to above does not become employed by the same division,
department or group within such future employer in which the Contributor is
employed and does not report to the Contributor.
5.3 REASONABLENESS.
The Contributor hereby agrees that the covenants set forth in this Article
V are reasonable under the circumstances and will not interfere with his ability
to earn a living or to otherwise meet his financial obligations. The Contributor
further acknowledges that he has experience and expertise in industries and
businesses other than those that compete, either directly or indirectly, with
the Restricted Group and that the restrictions contained in this Article V will
not interfere with or otherwise impair the Contributor's ability to earn a
living or to otherwise meet his financial obligations in such other industries
or businesses. The Contributor believes that he has received sufficient
consideration and other benefits hereunder and in connection with the Merger to
clearly justify the restrictions contained in this Article V which, in any event
(given the
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Contributor's education, skills and ability and his substantial experience in
industries other than that of the Restricted Group), the Contributor does not
believe would prevent him from otherwise earning a living. The Contributor has
carefully considered the nature and extent of the restrictions placed upon him
by this Agreement, and hereby acknowledges and agrees that the same are
reasonable in time and territory and do not confer a benefit upon the Company
disproportionate to the detriment of the Contributor. The Contributor and the
Corporation agree that if in the opinion of any court of competent jurisdiction
such restraint is not reasonable in any respect, such court will have the right,
power and authority to excise and modify such provision or provisions of this
covenant as so amended. The Contributor agrees that any breach of the covenants
contained in this Article V would irreparably injure the Corporation.
Accordingly, the Contributor agrees that the Corporation may, in addition to
pursuing any remedies it may have in law or in equity, cease making any payments
to the Contributor otherwise required by any contract between the Corporation
and the Contributor and obtain an injunction against the Contributor from any
court having competent jurisdiction over the matter restraining any further
violation of this Article V. The Contributor acknowledges and agrees that, in
the event of a termination of his employment with the Corporation or any of its
subsidiaries, this Article V will remain in force and effect and he will remain
bound by such provisions in accordance with their terms. The parties acknowledge
and agree that the covenants and agreements set forth in this Article V shall in
no way affect, restrict, impair or otherwise limit any other covenants or
agreements between the Contributor and the Corporation or any of its
subsidiaries that relate to the same or similar subject matter as this Article V
and have been entered into on or prior to the Contribution Closing Date.
ARTICLE VI
MISCELLANEOUS
6.1 DEFINITIONS.
Capitalized terms used but not defined in this Agreement shall have the
respective meanings given to such terms in the Merger Agreement.
6.2 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, this Agreement shall not confer any
rights or remedies upon any Person (as defined in the Stockholders Agreement)
other than the parties hereto and their respective successors and permitted
assigns, personal representatives and heirs and estates.
6.3 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the parties hereto
and supersedes any prior understandings, agreements or representations by or
among the parties hereto, written or oral, with respect to the transactions
contemplated hereby.
6.4 SUCCESSORS AND ASSIGNS.
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This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that the Corporation may not assign any of its rights under this Agreement
without the express prior written consent of the Contributor.
6.5 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding for all purposes.
6.6 NOTICES.
All notices or other communications which are required or otherwise
delivered hereunder shall be deemed to be sufficient and duly given if contained
in a written instrument and (a) personally delivered or sent by facsimile; (b)
sent by nationally-recognized overnight courier guaranteeing next business day
delivery; or (c) sent by first class registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
(i) if to the Corporation, to:
AC Safety Holding Corp.
c/o Bear Xxxxxxx Merchant Banking
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
with a copy to:
O'Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
(ii) if to the Contributor, to the Contributor at the address set
forth on the signature page hereto;
with a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
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Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (i) when delivered, if
personally delivered or sent by facsimile, (ii) on the first business day after
dispatch, if sent by nationally recognized, overnight courier guaranteeing next
business day delivery and (iii) on the fifth business day following the date on
which the piece of mail containing such communication is posted, if sent by
mail.
6.7 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Delaware without giving effect to any choice or
conflict of law, provision or rule (whether of the State of Delaware) or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
6.8 AMENDMENTS.
This Agreement may be modified, supplemented or amended only by a written
instrument executed by all parties hereto.
6.9 HEADINGS.
The headings contained in this Agreement are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
6.10 FURTHER ASSURANCES.
At all times on and after the date hereof, each party hereto, at the
reasonable request of another party hereto, shall execute and deliver such other
documents or instruments and do and perform such other acts and things as may be
necessary or desirable for effecting completely the consummation of this
Agreement and the transactions contemplated hereby.
6.11 SEVERABILITY.
If any particular provision of this Agreement shall be determined to be
illegal and unenforceable by any court of law, the remaining provisions shall be
severable and enforceable in accordance with their terms.
* * * * *
-12-
IN WITNESS WHEREOF, the parties have executed this Management Contribution
Agreement as of the date first above written.
CORPORATION:
AC SAFETY HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
THE CONTRIBUTOR:
-----------------------------------------------
Name:
-----------------------------------------
Address:
--------------------------------------
--------------------------------------
Number of Contributed Shares:
-----------------
Dollar value of Contributed Shares:
-----------
Number of shares of Common Stock:
-------------
Number of shares of Preferred Stock:
----------
Contributor Loan Balance:
---------------------
TABLE OF CONTENTS
(continued)
PAGE
IN WITNESS WHEREOF, the parties have executed this Management Contribution
Agreement as of the date first above written.
CORPORATION:
AC SAFETY HOLDING CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE CONTRIBUTOR:
/s/ Xxxxxxx X. XxXxxx
-----------------------------------------------
Name: Xxxxxxx X. XxXxxx
Number of Contributed Shares: 2,728
Dollar value of Contributed Shares: $3,409,895
Number of shares of Common Stock: 85,247
Number of shares of Preferred Stock: 2,557
Contributor Loan Balance: $ 669,660
-2-
TABLE OF CONTENTS
(continued)
PAGE
IN WITNESS WHEREOF, the parties have executed this Management Contribution
Agreement as of the date first above written.
CORPORATION:
AC SAFETY HOLDING CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE CONTRIBUTOR:
/s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Number of Contributed Shares: 910
Dollar value of Contributed Shares: $1,137,465
Number of shares of Common Stock: 28,436
Number of shares of Preferred Stock: 853
Contributor Loan Balance: $ 73,155
-3-
TABLE OF CONTENTS
(continued)
PAGE
IN WITNESS WHEREOF, the parties have executed this Management Contribution
Agreement as of the date first above written.
CORPORATION:
AC SAFETY HOLDING CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE CONTRIBUTOR:
/s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Address: 000 Xxxxxx Xxx
Xxxxxx, XX 00000
Number of Contributed Shares: 910
Dollar value of Contributed Shares: $1,137,465
Number of shares of Common Stock: 28,436
Number of shares of Preferred Stock: 853
Contributor Loan Balance: $ 73,155
-4-
TABLE OF CONTENTS
(continued)
PAGE
IN WITNESS WHEREOF, the parties have executed this Management Contribution
Agreement as of the date first above written.
CORPORATION:
AC SAFETY HOLDING CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE CONTRIBUTOR:
/s/ X. Xxxx Maillitz
-----------------------------------------------
Name: X. Xxxx Xxxxxxx
Address: 0000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Number of Contributed Shares: 682
Dollar value of Contributed Shares: $852,474
Number of shares of Common Stock: 21,311
Number of shares of Preferred Stock: 639
Contributor Loan Balance: $ 82,228
-5-
