Exhibit 10.8
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made as of June 13,
2003, between VI Acquisition Corp., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the "Director").
The Company and Director desire to enter into an agreement pursuant to
which Director will commit to purchase, and the Company will commit to sell, an
aggregate of 11,250 shares of the Company's Common Stock, par value $.0001 per
share (the "Common Stock"). All of such shares of Common Stock are referred to
herein as "Director Shares." Certain definitions are set forth in Section 7 of
this Agreement.
Pursuant to the stock purchase agreement between the Company, the
Investors, certain employees of the Company and others dated as of the date
hereof (the "Purchase Agreement"), Director has also agreed to purchase 8,373
shares of Common Stock and 480 shares of Preferred Stock. Any shares of Common
Stock or Preferred Stock purchased by Director pursuant to the Purchase
Agreement are referred to herein as "Coinvest Shares," and Coinvest Shares,
together with Director Shares, are referred to herein as "Shares".
The parties hereto agree as follows:
1. Director Shares.
(a) Upon execution of this Agreement, Director will purchase, and
the Company will sell, 11,250 shares of Common Stock at a price of $1.00 per
share, the fair market value of the Common Stock on the date hereof. The Company
will deliver to Director the certificates representing such Director Shares, and
Director will deliver to the Company a cashier's or certified check or wire
transfer of funds in the aggregate amount of $11,250.
(b) Within thirty (30) days after each purchase by Director of
Director Shares pursuant to this Agreement, Director will make an effective
election with the Internal Revenue Service under Section 83(b) of the Internal
Revenue Code and the regulations promulgated thereunder in the form of Exhibit A
attached hereto.
(c) In connection with the purchase and sale of the Director
Shares pursuant hereto, Director represents and warrants to the Company that:
(i) The Director Shares to be acquired by Director
pursuant to this Agreement will be acquired for Director's own account
and not with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any applicable state securities
laws, and the Director Shares will not be disposed of in contravention
of the Securities Act or any applicable state securities laws;
(ii) Director is an outside director of the Company, is
sophisticated in financial matters and is able to evaluate the risks
and benefits of the investment in the Director Shares;
(iii) Director is able to bear the economic risk of his
investment in the Director Shares for an indefinite period of time
because the Director Shares have not been registered under the
Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such
registration is available;
(iv) Director has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
the Director Shares and has had full access to such other information
concerning the Company as he has requested;
(v) This Agreement and each of the other agreements
contemplated hereby and by the Purchase Agreement to which Director is
a party constitute legal, valid and binding obligations of Director,
enforceable in accordance with their terms, and the execution, delivery
and performance of this Agreement and such other agreements by Director
does not and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which Director is a party or any
judgment, order or decree to which Director is subject;
(vi) Director is not a party to or bound by any employment
agreement, consulting agreement, noncompete agreement or
confidentiality agreement which conflicts with the obligations set
forth in this Agreement; and
(vii) Director is a resident of the State of Illinois.
(d) As an inducement for the Company to commit to issue the
Director Shares to Director, and as a condition thereto, Director acknowledges
and agrees that neither any future issuance of capital stock of the Company to
Director nor any provision contained herein or in the Purchase Agreement shall
entitle Director to remain in the service of the Company, or any Subsidiary of
the Company, or affect the right of the Company or any Subsidiary to terminate
Director's services at any time for any reason.
2. Vesting of Shares.
(a) Except as otherwise provided in Section 2(b) below, the
Director Shares purchased hereunder will become vested in accordance with the
following schedule, if as of each such date Director is still serving as a
director of the Company or is otherwise engaged to perform services on behalf of
the Company or any Subsidiary of the Company:
CUMULATIVE PERCENTAGE OF
DATE DIRECTOR SHARES TO BE VESTED
---- ----------------------------
1st Anniversary of this Agreement 20%
2nd Anniversary of this Agreement 40%
3rd Anniversary of this Agreement 60%
4th Anniversary of this Agreement 80%
5th Anniversary of this Agreement 100%
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(b) Notwithstanding the foregoing or anything herein to the
contrary, upon the occurrence of a Sale of the Company, all Director Shares
which have not yet become vested shall become vested at the time of such Sale of
the Company (such portion being referred to herein as the "Accelerated Shares");
provided, however, and subject to and unless otherwise provided for under the
Stockholders Agreement by and among the Company, the Investors, the Director and
certain other parties, that Director shall not Transfer any interest in any
Accelerated Shares unless and until such time as the Investors shall have
received cash dividends or other cash proceeds resulting from any distributions
on or dispositions of any Preferred Stock or Common Stock in an aggregate amount
equal to the product of (i) two (2), multiplied by (ii) the aggregate purchase
price paid by the Investors to the Company for all Preferred Stock, Common Stock
and other equity interests of the Company purchased by the Investors (but not in
any event including amounts committed but not yet contributed to the capital of
the Company). Director Shares which have become vested hereunder are referred to
herein as "Vested Shares," and all other Director Shares are referred to herein
as "Unvested Shares."
(c) The Director Securities shall at all times be subject to such
restrictions or limitations with respect to the Transfer thereof that may be
contained herein or in the Stockholders Agreement or as otherwise provided by
law.
3. Repurchase Option.
(a) In the event Director ceases to be a director of the Company
or to otherwise be engaged by the Company or any Subsidiary for any reason (a
"Separation"), the Shares and all other Director Securities (whether held by
Director or one or more of Director's transferees, other than the Company and
the Investors) will be subject to repurchase, in each case by the Company
pursuant to the terms and conditions set forth in this Section 3 (the
"Repurchase Option").
(b) In the event of a Separation, the Director Shares purchased
hereunder shall be subject to repurchase as follows: (i) the purchase price for
each Unvested Share of Common Stock will be the Director's Original Cost for
such share; and (ii) the purchase price for each Vested Share of Common Stock
will be the Fair Market Value for such share.
(c) In the event of a Separation, the Coinvest Shares purchased
pursuant to the Purchase Agreement, and any other Director Securities not
otherwise described in Section 3(b) above or this Section 3(c), shall be subject
to repurchase as follows: (i) the purchase price for each share of Common Stock
will be the Fair Market Value for such share and (ii) the purchase price for
each share of Preferred Stock will be Director's Original Cost for such share.
(d) In the event of a Separation, the Company may elect to
purchase all or any portion of the Director Securities by delivering written
notice (the "Repurchase Notice") to the holder or holders of the Director
Securities within 60 days after the Separation. The Repurchase Notice will set
forth the number of Unvested Shares, Vested Shares and Coinvest Shares to be
acquired from each holder, the aggregate consideration to be paid for such
securities and the time and place for the closing of the transaction. The number
of each type of securities to be repurchased by the Company shall first be
satisfied to the extent possible from the Director Securities held by Director
at the time of delivery of the Repurchase Notice. If the number of any or all
types of
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Director Securities then held by Director is less than the total number of such
securities which the Company has elected to purchase, the Company shall purchase
the remaining securities elected to be purchased from the other holder(s) of
Director Securities under this Agreement, pro rata according to the number of
the applicable type of Director Securities held by such other holder(s) at the
time of delivery of such Repurchase Notice (determined as nearly as practicable
to the nearest share). The number of Unvested Shares, Vested Shares and Coinvest
Shares to be repurchased hereunder will be allocated among Director and the
other holders of Director Securities (if any) pro rata according to the number
of the applicable type of Director Securities to be purchased from such Person.
(e) If, following a Separation due to the death of the Director,
the Company does not exercise its Repurchase Option as to the Coinvest Shares,
within the period specified in Section 3(d) above, then the estate of the
Director shall have 90 days from the expiration of the Company's 60 day exercise
period to compel the Company to purchase the Coinvest Shares at the lesser of
(i) the Original Cost or (ii) the price determined as set forth in Section 3(c)
above. The estate of the Director shall exercise its right to compel the
repurchase of the Coinvest Shares, if at all, by giving written notice to the
Company within such 90 day period (the "Put Notice").
(f) The closing of the purchase of the Director Securities
pursuant to the Repurchase Option or the Put Notice shall take place on the date
designated by the Company in the Repurchase Notice, or on the date designated by
the estate of the Director in the Put Notice, which date in either such event
shall not be more than 2 months nor less than 5 days after the delivery of such
notice. The Company will pay for the Director Securities to be purchased by it
pursuant to the Repurchase Option or Put Notice by first offsetting amounts
outstanding under any bona fide debts owed by Director to the Company, and will
pay the remainder of the purchase price to the extent reasonably permissible
under the Company's and its Subsidiaries' equity financing agreements and
agreements evidencing indebtedness for borrowed money and to the extent the
Company has the financial wherewithal at the time to make such payments, by a
check or wire transfer of funds and, if not, by a subordinate note or notes,
each on terms acceptable to banks and other financial institutions loaning money
to the Company and its Subsidiaries, payable in up to three substantially equal,
semi-annual installments beginning on the six month anniversary of the closing
of such purchase and bearing interest (payable quarterly) at a rate per annum
equal to the prime rate as published in The Wall Street Journal from time to
time, in the aggregate amount of the purchase price for such securities. The
Company will be entitled to receive customary representations and warranties
from the sellers of Director Securities (including representations and
warranties regarding good title to the Director Securities, the absence of any
liens on such title or other encumbrances with respect to the Transfer of the
Director Securities and the ability of such sellers to consummate the sale).
(g) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Director Securities by the Company shall be
subject to applicable restrictions contained in the Delaware General Corporation
Law and as may be required by other parties in the Company's or any
Subsidiaries' equity financing agreements and agreements evidencing indebtedness
for borrowed money, if any. If any such restrictions prohibit the repurchase of
Director Securities hereunder which the Company is otherwise entitled or
required to make, the Company may make such repurchases as soon as it is
permitted to do so under such restrictions.
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(h) Notwithstanding anything to the contrary contained in this
Agreement, if Director delivers the notice of objection described in the
definition of Fair Market Value, or if the Fair Market Value of a Share is
otherwise determined to be an amount more than 10% greater than the per share
repurchase price for such Shares originally determined by the Board, the Company
shall have the right to revoke its exercise of the Repurchase Option for all or
any portion of the Shares elected to be repurchased by it by delivering notice
of such revocation in writing to the holders of the Shares during (i) the
thirty-day period beginning on the date the Company receives Director's written
notice of objection and (ii) the thirty-day period beginning on the date the
Company is given written notice that the Fair Market Value of a Share was
finally determined to be an amount more than 10% greater than the per share
repurchase price for such Shares originally determined by the Board.
4. Restrictions on Transfer of Director Securities.
(a) Transfer of Director Securities. Director shall not Transfer
any interest in any Director Securities, except at such time as the restrictions
herein terminate as provided in Section 4(b) below. Notwithstanding the
foregoing, the restrictions contained in this Section 4 will not apply with
respect to (i) Transfers of shares of Director Securities pursuant to applicable
laws of descent and distribution or (ii) Transfer of shares of Director
Securities among Director's Family Group; provided that in each case such
restrictions will continue to be applicable to the Director Securities
irrespective of any such Transfer. Any transferee of Director Securities
pursuant to a Transfer in accordance with the provisions of this Section 4(a) is
herein referred to as a "Permitted Transferee."
(b) Termination of Restrictions. The restrictions on the Transfer
of Director Securities set forth in this Section 4 will continue with respect to
each Director Security until the earlier of (i) a Qualified Public Offering; or
(ii) a Sale of the Company.
5. Registration. Director understands that the Shares are not
currently being registered under the Securities Act by reason of their
contemplated issuance in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act pursuant to Rule 701
thereof. Director further agrees that he will not sell or otherwise dispose of
the Shares unless such sale or other disposition has been registered or is
exempt from registration under the Securities Act and has been registered or
qualified or is exempt from registration or qualification under applicable
securities laws of any state. Director understands that a restrictive legend
consistent with the foregoing, and as set forth in Section 6, will be placed on
the certificates evidencing the Shares, and related stop transfer instructions
will be noted in the stock transfer records of the Company and/or its stock
transfer agent for the Shares.
6. Additional Restrictions on Transfer of Director Securities.
(a) Legend. The certificates representing the Director Securities
will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
AS OF JUNE 13, 2003, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED
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(THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN
REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND A DIRECTOR OF THE COMPANY
DATED AS OF JUNE 13, 2003. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY
THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE."
(b) Opinion of Counsel. No holder of Director Securities may
transfer any Director Securities (except pursuant to an effective registration
statement under the Securities Act) without first delivering to the Company an
opinion of counsel (reasonably acceptable in form and substance to the Company)
that neither registration nor qualification under the Securities Act and
applicable state securities laws is required in connection with such Transfer.
7. Definitions.
"Affiliate" of the Investors means any direct or indirect general or
limited partner or member of an Investor, as applicable, or any employee or
owner thereof, or any other person, entity or investment fund controlling,
controlled by or under common control with an Investor.
"Director's Family Group" means Director's spouse and descendants
(whether natural or adopted), any trust solely for the benefit of Director
and/or Director's spouse and/or descendants and any retirement plan for the
Director.
"Director Securities" means the Shares and any other securities of the
Company held by Director or any of Director's transferees permitted hereunder.
All Director Securities will continue to be Director Securities in the hands of
any holder other than Director (except for the Company, the Investors and the
Investors' Affiliates and except for transferees in a Public Sale). Except as
otherwise provided herein, each such other holder of Director Securities will
succeed to all rights and obligations attributable to Director as a holder of
Director Securities hereunder. Director Securities will also include shares of
the Company's capital stock or other securities of the Company issued with
respect to Director Securities by way of a stock split, dividend or other
recapitalization or reclassification.
"Fair Market Value" of each Share as of a relevant date means the
average of the closing prices of the sales of the Common Stock on all securities
exchanges on which such Common Stock may at the time be listed on that date, or,
if there have been no sales or exchange on which the Common Stock is listed on
any day, the average of the highest bid and lowest asked prices on all
nationally-recognized exchanges at the end of such day, or, if on any day such
Common Stock is not so listed, the average of the representative bid and asked
prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if on any
day such Common Stock is not quoted in the NASDAQ System, of the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau
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Incorporated, or any similar successor organization, in each such case averaged
over a period of 21 days consisting of the day as of which the Fair Market Value
is being determined and the 20 consecutive business days prior to such day. If
at any time such Common Stock is not listed on any securities exchange or quoted
in the NASDAQ System or the over-the-counter market, the Fair Market Value will
be the fair value of such Common Stock determined in good faith by the Board of
Directors of the Company (the "Board Calculation"). If the Director disagrees
with the Board Calculation, the Director may, within 30 days after receipt of
the Board Calculation, deliver a notice (an "Objection Notice") to the Company
setting forth the Director's calculation of Fair Market Value. The Board and the
Director will negotiate in good faith to agree on such Fair Market Value, but if
such agreement is not reached within 30 days after the Company has received the
Objection Notice, Fair Market Value shall be determined by an appraiser selected
by the Board, which appraiser shall submit to the Board and the Director a
report within 30 days of its engagement setting forth such determination. The
determination of such appraiser shall be final and binding upon all parties. If
the Repurchase Option is exercised within 45 days after a Separation, then Fair
Market Value shall be determined as of the date of such Separation; thereafter,
Fair Market Value shall be determined as of the date the Repurchase Option or
Put Notice, as applicable, is exercised. A comparable process will be employed
to determine the Fair Market Value of Preferred Stock.
"Investors" means Wind Point Partners IV, L.P., Wind Point Partners V,
L.P., Mid Oaks Investments LLC and ▇▇ ▇▇▇▇▇▇▇ & Sons, Inc. and such other
parties as may be designated as "Investors" in the Purchase Agreement.
"Original Cost" means, (i) with respect to each share of Common Stock
purchased hereunder or under the Purchase Agreement, $1.00 (as proportionately
adjusted for all subsequent stock splits, stock dividends and other
recapitalizations) and (ii) with respect to each share of Preferred Stock
purchased under the Purchase Agreement, $1,000.00 plus all accrued and unpaid
dividends of the Preferred Stock (as proportionately adjusted for all subsequent
stock splits, stock dividends and other recapitalizations).
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means the Company's Series A Preferred Stock, par
value $.0001 per share.
"Public Sale" means any sale pursuant to a registered public offering
under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Qualified Public Offering" means the sale in an underwritten public
offering registered under the Securities Act of shares of the Company's Common
Stock approved by the Board pursuant to which the Investors have realized in
cash a return of two or more times the amount of their investment in the
Company.
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"Sale of the Company" means any transaction or series of transactions
pursuant to which (A) any Person(s) other than the Investors and their
respective Affiliates in the aggregate acquire(s) (i) capital stock of the
Company possessing the voting power (other than voting rights accruing only in
the event of a default, breach or event of noncompliance) to elect a majority of
the Company's board of directors (whether by merger, consolidation,
reorganization, combination, sale or transfer of the Company's capital stock,
shareholder or voting agreement, proxy, power of attorney or otherwise) or (ii)
all or substantially all of the Company's assets determined on a consolidated
basis; provided that the term "Sale of the Company" shall not include any sale
of equity or debt securities by the Company in a private offering to other
investors selected by the Investors; or (B) more than 50% of the assets of the
Company (treating investments in Affiliates as assets for these purposes) is
spun off, split off or otherwise distributed.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Stockholders Agreement" means that certain Stockholders Agreement
dated as of even date hereof among the Company, the Investors, the Director and
certain other parties.
"Subsidiary" means any entity of which the Company owns securities
having a majority of the ordinary voting power in electing the board of
directors, or the equivalent governing body, directly or through one or more
subsidiaries.
"Transfer" means to sell, transfer, assign, pledge or otherwise dispose
of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
8. Notices. Any notice, consent, waiver and other communications
required or permitted pursuant to the provisions of this Agreement must be in
writing and will be deemed to have been properly given (a) when delivered by
hand; (b) when sent by telecopier (with acknowledgement of complete
transmission), provided that a copy is mailed by U.S. certified mail, return
receipt requested; (c) three (3) days after sent by certified mail, return
receipt requested; or (d) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case to the appropriate addresses and
telecopier numbers set forth below:
If to the Company:
VI Acquisition Corp.
▇/▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Director
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Each party will be entitled to specify a different address for the receipt of
subsequent notices by giving written notice thereof to the other party in
accordance with this Section 8.
9. General Provisions.
(a) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Director Securities in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Director Securities as the owner
of such securities for any purpose.
(b) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
Director hereby releases the Company and its affiliates and its and their
predecessors from any obligation or liability the Company or any of its
affiliates or its or their predecessors owes or owed to Director or any of his
affiliates and related persons prior to the date hereof.
(d) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
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(e) Successors and Assigns.
(i) All Director Securities will continue to be Director
Securities in the hands of any holder other than Director, including
any of Director's transferees permitted hereunder or under the
Stockholders Agreement (except for the Company, the Investors and the
Investors' Affiliates and except for transferees in a Public Sale).
Except as otherwise provided herein, each such other holder of Director
Securities will succeed to all rights and obligations attributable to
Director as a holder of Director Securities hereunder.
(ii) Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by Director,
the Company, the Investors and their respective successors and assigns
(including subsequent holders of Director Securities); provided that
the rights and obligations of Director under this Agreement shall not
be assignable except in connection with a permitted transfer of
Director Securities hereunder.
(iii) Each of the Investors is intended to be a third party
beneficiary of this Agreement and may enforce any rights granted to it
hereunder.
(f) Choice of Law. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
Furthermore, Director and Company agree and consent to submit to personal
jurisdiction in the State of Illinois in any state or federal court of competent
subject matter jurisdiction situated in ▇▇▇▇ County, Illinois. Director and
Company agree that the sole and exclusive venue for any suit arising out of, or
seeking to enforce, the terms of this Agreement shall be in a state or federal
court of competent subject matter jurisdiction situated in ▇▇▇▇ County,
Illinois.
(g) Remedies. Each of the parties to this Agreement (including the
Investor) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorney's fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Director. No cause of conduct or failure or delay in enforcing the provisions of
this Agreement shall affect the validity, binding effect or enforceability of
this Agreement.
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(i) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
(j) Indemnification and Reimbursement of Payments on Behalf of
Director. The Company and any Subsidiary shall be entitled to deduct or withhold
from any amounts owing from the Company or any Subsidiary to the Director any
federal, state, local or foreign withholding taxes, excise taxes, or employment
taxes ("Taxes") imposed with respect to the Director's compensation or other
payments from the Company or any Subsidiary or the Director's ownership interest
in the Company, including, but not limited to, wages, bonuses, dividends, the
receipt or exercise of stock options and/or the receipt or vesting of restricted
stock. The Director shall indemnify the Company and any Subsidiary for any
amounts paid with respect to any such Taxes, together with any interest,
penalties and related expenses thereto.
(k) Termination. This Agreement shall survive the termination of
Director's services with the Company or any Subsidiary and shall remain in full
force and effect after such termination.
(l) Generally Accepted Accounting Principles; Adjustments of
Numbers. Where any accounting determination or calculation is required to be
made under this Agreement or the exhibits hereto, such determination or
calculation (unless otherwise provided) shall be made in accordance with United
States generally accepted accounting principles, consistently applied. All
numbers set forth herein which refer to share prices or amounts will be
appropriately adjusted to reflect stock splits, stock dividends, combinations of
shares, recapitalizations or other similar transactions affecting the subject
class of stock.
(m) Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury of any claim or cause of
action in any legal proceeding arising out of or related to this Agreement or
the transactions or events contemplated hereby or any course of conduct, course
of dealing, statements (whether verbal or written) or actions of any party
hereto. The parties hereto each agree that any and all such claims and causes of
action shall be tried by a court trial without a jury. Each of the parties
hereto further waives any right to seek to consolidate any such legal proceeding
in which a jury trial has been waived with any other legal proceeding in which a
jury trial cannot or has not been waived.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Management Agreement
as of the date first written above.
VI ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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EXHIBIT A
ELECTION TO INCLUDE VALUE OF
RESTRICTED PROPERTY IN GROSS INCOME
IN YEAR OF TRANSFER UNDER CODE SECTION 83(b)
The undersigned (the "TAXPAYER") hereby elects pursuant to Section
83(b) of the Internal Revenue Code to include the restricted property described
below in his gross income for the tax year ending December 31, 2003 and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. THE NAME, ADDRESS AND TAXPAYER IDENTIFICATION NUMBER OF THE TAXPAYER
ARE:
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Social Security # _______________
2. DESCRIPTION OF PROPERTY WITH RESPECT TO WHICH THE ELECTION IS BEING
MADE:
11,250 shares (the "SHARES") of Common Stock, par value $0.01 per
share, of VI Acquisition Corp., a Delaware corporation (the "COMPANY").
3. THE DATE ON WHICH PROPERTY WAS TRANSFERRED IS JUNE __, 2003.
The taxable year to which this election relates is calendar year 2003.
4. THE NATURE OF THE RESTRICTION(S) TO WHICH THE PROPERTY IS SUBJECT IS:
A. The Shares are not transferable except as permitted by a
Management Agreement. Transferees are generally subject to the same restrictions
as are imposed on their transferors. Certificates representing the Shares
contain legends to give notice of restrictions on transfer.
B. If the Taxpayer ceases to serve as a director or other service
provider of the Company prior to certain specified time periods (the last day of
each such period, a "VESTING DATE"), a portion of the Shares will be subject to
repurchase by the Company at the amount the Taxpayer paid for the Shares (the
"PURCHASE PRICE"). On each specified Vesting Date, a portion of the Shares
subject to repurchase at the Purchase Price will lapse and such portion will
then be repurchasable at its fair market value in the event the Taxpayer ceases
to serve as a director or other service provided of the Company. On the June __,
2008 Vesting Date, all Shares then will be repurchasable at their fair market
value in the event the Taxpayer ceases to serve as a director or other service
provider of the Company.
5. FAIR MARKET VALUE:
The fair market value at time of transfer (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 $1.00 per
Share.
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6. AMOUNT PAID FOR PROPERTY:
The amount paid by Taxpayer for said property is $1.00 per Share.
7. FURNISHING STATEMENT TO EMPLOYER:
A copy of this statement has been furnished to the Company.
Dated: June __, 2003
---------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
This election must be filed with the Internal Revenue Service Center with which
the Taxpayer files his or her Federal income tax returns and must be filed
within thirty (30) days after the date of purchase. This filing should be made
by registered or certified mail, return receipt requested. The taxpayer must
retain two copies of the completed form for filing with his or her Federal and
State tax returns for the current tax year and an additional copy for his or her
records.
2
