Exhibit 10.10
AMENDED AND RESTATED SPECIAL PURCHASE OPTION AGREEMENT
This Amended and Restated Special Purchase Option Agreement (the
"AGREEMENT") is dated and effective as of January 28, 2004, by and between
Beacon Roofing Supply, Inc., a Delaware corporation (the "COMPANY"), and Xxxxxx
X. Xxxx ("EXECUTIVE").
RECITALS
A. Executive is the President and Chief Executive Officer of the
Company and of Beacon Sales Acquisition, Inc. d/b/a Beacon Sales Company, a
Delaware corporation ("BEACON"), a subsidiary of the Company. Executive has
entered into an Employment Agreement with Beacon dated as of October 20, 2003
(as amended from time to time, the "EMPLOYMENT AGREEMENT").
B. In order to provide Executive with a further incentive to develop a
greater interest and closer identity with the Company and its subsidiaries, the
Company desires to offer Executive the opportunity to purchase shares of the
Company's Class A Common Stock (the "SHARES") in accordance with and subject to
the terms of this Agreement.
NOW, THEREFORE IT IS AGREED:
1. OPTION GRANT. On the date hereof, the Company hereby grants to
Executive the option (the "SPECIAL OPTION") to purchase all or any part of
Eighty-Nine and 724/1000ths (89.724) Shares at a price of Fifteen Thousand Nine
Hundred Dollars ($15,900.00) per Share.
2. TERM. The term of the Special Option shall expire at the close of
regular business hours at the Company's chief executive offices on October 20,
2013. Notwithstanding anything to the contrary herein, Executive shall not have
the right to exercise the Special Option at any time after (and the Special
Option shall terminate upon) the earlier occurrence of (a) the time that
Executive ceases to serve the Company Group as an employee for any reason
whatsoever, except Retirement or termination without Cause, (b) the date that is
90 days after the termination without Cause of Executive's employment with the
Company Group, (c) the consummation of a Sale of the Company, or (d) the
consummation of a Qualified Public Offering. As used herein, "EXECUTIVE
SECURITIES AGREEMENT" means the Executive Securities Agreement dated as of
October 20, 2003 among Executive, the Company, and Code, Xxxxxxxx & Xxxxxxx III,
L.P, as amended from time to time. As used herein, the terms "CAUSE", "COMPANY
GROUP", "DISABILITY", "SALE OF THE COMPANY", "PUBLIC OFFERING", "RESIGNATION"
and "RETIREMENT" have the meanings given to them in the Executive Securities
Agreement. For greater certainty, for purposes of this Agreement, none of the
following shall constitute a termination without Cause: (i) Resignation by the
Executive, (ii) Retirement; or (iii) termination for Disability. As used herein,
a "QUALIFIED PUBLIC OFFERING" means a Public Offering with aggregate proceeds
(net of any underwriting commissions) to the issuer and/or selling stockholders
(as the case may be) of at least $50 million dollars ($50,000,000).
3. VESTING. The Special Option may be exercised at any time only to the
extent that the unexercised portion thereof is then vested. The Special Option
shall vest as to 44.862 Shares on October 20, 2005, and as to another 44.862
Shares on October 20, 2006; provided, however, that the Special Option shall
vest as to all of the Shares that it covers upon the earlier occurrence of (A)
the consummation of a Sale of the Company, or (B) the consummation of a
Qualified Public Offering. The Company shall give Executive notice of any Sale
of the Company or Qualified Public Offering that occurs during the term of this
Option and an opportunity to exercise the Special Option at the closing of any
such Sale of the Company or Qualified Public Offering.
4. EXERCISE. The Special Option may be exercised in full or in part at
any time or from time to time, in a single or multiple exercises, subject to
Sections 2 and 3 hereof. In order to exercise the Special Option, Executive
must: (a) give written notice (in a form substantially similar to SCHEDULE 1
attached hereto) to the Company at its address set forth in SCHEDULE 1, stating
the number of Shares with respect to which the Special Option is being
exercised, and (b) tender payment for the full exercise price of such Shares
($15,900.00 times the number of Shares as to which the Special Option is
exercised) in cash, by certified or cashier's check, or by wire transfer of
immediately available funds unless, at the time of exercise, the Company agrees
to accept other Shares, retention of Shares which would otherwise be issued upon
exercise or a combination of the foregoing, or such other arrangements as the
Company, in its sole discretion, determines.
5. RESTRICTIONS ON TRANSFER. Executive acknowledges and agrees that any
Shares issued pursuant to the Special Option are subject to the terms and
conditions of the Executive Securities Agreement.
6. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Upon the exercise of
the Special Option, Executive shall be treated as representing , warranting and
acknowledging that each of his representations, warranties and acknowledgements
set forth in Section 2(b) of the Executive Securities Agreement (except for
those set forth in clauses (iii) or (iv) of Section 2(b) of the Executive
Securities Agreement, to the extent that a Public Offering has previously
occurred and those representations and warranties are not then applicable) are
true and correct as of the date of such exercise.
7. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction so as to best give effect
to the intent of the parties under this Agreement.
8. COUNTERPARTS. This Agreement may be executed in separate
counterparts (by facsimile or otherwise), each of which is deemed to be an
original and all of which taken together constitute one and the same agreement.
9. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and its subsidiaries and their respective heirs, legal
representatives, successors and assigns; provided that the rights and
obligations of Executive under this Agreement shall not be assignable.
10. CHOICE OF LAW. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Delaware without giving effect
to any choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
11. CONSENT TO JURISDICTION. The parties irrevocably consent and submit
to the nonexclusive jurisdiction of any local, state or federal court within the
Applicable County for the enforcement of this Agreement. The parties irrevocably
waive (with respect to any such court) any objection they may have to venue in
the defense of an inconvenient forum to the maintenance of such actions or
proceedings to enforce this Agreement. As used herein, "APPLICABLE COUNTY" means
Suffolk County, Massachusetts; provided, however, that when and if Executive
relocates his offices to a location outside of the greater Boston metropolitan
area in accordance with Section 5(b) of the Employment Agreement, then the
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Applicable County shall be (at all times thereafter) the county in which such
relocated office is situated immediately after such relocation.
12. WAIVER. The failure of any party to enforce any of the provisions of
this Agreement shall in no way be construed as a waiver of such provisions and
shall not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
13. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
14. PRIOR AGREEMENT; AMENDMENTS. This Agreement amends, restates and
supersedes in its entirety that certain Special Purchase Option Agreement (the
"PRIOR AGREEMENT") dated as of October 20, 2003 between the parties. Within five
business days after the date hereof, Executive shall return to the Company all
originals of the Prior Agreement in his possession. This Agreement shall not be
amended or modified unless pursuant to an agreement in writing signed by the
Company and Executive.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Special Purchase Option Agreement as of the date first written above.
OPTIONOR:
BEACON ROOFING SUPPLY, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President
EXECUTIVE:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
SCHEDULE 1
Beacon Roofing Supply, Inc.
[Street address of chief executive offices of the Company]
[City, State and Zip Code of chief executive offices of the Company]
Attn: Treasurer
NOTICE OF EXERCISE OF SPECIAL PURCHASE OPTION
I hereby give notice of my election to exercise, to the extent stated
below, the special purchase option ("Option") granted to me on January 28, 2004
to purchase 89.724 shares of Class A Common Stock, $.01 par value per share of
Beacon Roofing Supply, Inc. ("Shares") at a price of Fifteen Thousand Nine
Hundred Dollars ($15,900.00) per Share, pursuant to that certain Amended and
Restated Special Purchase Option Agreement dated as of January 12, 2004 by and
between the undersigned and Beacon Roofing Supply, Inc. I hereby elect to
exercise such Option to the extent of __________ Shares. Payment in the amount
of $__________ equal to the full exercise price of such Shares [is enclosed]
[has been transferred by wire transfer of immediately available funds to the
Company's account No. ____ at _____].
Dated:
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(signature)
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(printed name)
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(address)
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(city, state, zip code)
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(social security number)
