Exhibit 10.7
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made as of June 13,
2003, between VI Acquisition Corp., a Delaware corporation (the "Company"), and
Xxxxxx Xxxxxxxxxx ("Executive").
The Company and Executive desire to enter into an agreement pursuant to
which Executive will commit to purchase, and the Company will commit to sell, an
aggregate of 45,000 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 "Executive Shares." Certain definitions are set forth in Section 7 of
this Agreement.
The execution and delivery of this Agreement by the Company and
Executive is a condition to the purchase of shares of Common Stock and the
commitment to purchase shares of the Company's Series A Preferred Stock, par
value $.0001 per share (the "Preferred Stock"), by Wind Point Partners IV, L.P.,
Wind Point Partners V, L.P., Wind Point IV Executive Advisor Partners, LP, Wind
Point Associates, IV, LLC, Mid Oaks Investments LLC and XX Xxxxxxx & Sons, Inc.
(collectively, the "Investors" and each an "Investor"), pursuant to a stock
purchase agreement between the Company, the Investors and certain executives of
the Company dated as of the date hereof (the "Purchase Agreement"). Certain
provisions of this Agreement are intended for the benefit of, and will be
enforceable by, the Investors.
Pursuant to the Purchase Agreement, Executive has also agreed to
purchase 7,795 shares of Common Stock and, pursuant to a Nonstatutory Stock
Option Agreement, has received an option to purchase 458.57 shares of Preferred
Stock. Any shares of Common Stock or Preferred Stock purchased by Executive
pursuant to the Purchase Agreement or the Nonstatutory Stock Option Agreement
are referred to herein as "Coinvest Shares," and Coinvest Shares, together with
Executive Shares, are referred to herein as "Shares".
The parties hereto agree as follows:
1. Executive Shares.
(a) Upon execution of this Agreement, Executive will purchase, and
the Company will sell, 45,000 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 Executive the certificates representing such Executive Shares,
and Executive will deliver to the Company a cashier's or certified check or wire
transfer of funds in the aggregate amount of $45,000.
(b) Within thirty (30) days after each purchase by Executive of
Executive Shares pursuant to this Agreement, Executive 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 Executive
Shares pursuant hereto, Executive represents and warrants to the Company that:
(i) The Executive Shares to be acquired by Executive
pursuant to this Agreement will be acquired for Executive'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 Executive Shares will not be disposed of in contravention
of the Securities Act or any applicable state securities laws;
(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks
and benefits of the investment in the Executive Shares;
(iii) Executive is able to bear the economic risk of his
investment in the Executive Shares for an indefinite period of time
because the Executive 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) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
the Executive 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 Executive is
a party constitute legal, valid and binding obligations of Executive,
enforceable in accordance with their terms, and the execution, delivery
and performance of this Agreement and such other agreements by
Executive does not and will not conflict with, violate or cause a
breach of any agreement, contract or instrument to which Executive is a
party or any judgment, order or decree to which Executive is subject;
(vi) Executive is not a party to or bound by any other
employment agreement, noncompete agreement or confidentiality agreement
which conflicts with the obligations set forth in this Agreement or in
the Employment Agreement; and
(vii) Executive is a resident of the State of Colorado.
(d) As an inducement for the Company to commit to issue the
Executive Shares to Executive, and as a condition thereto, Executive
acknowledges and agrees that neither any future issuance of capital stock of the
Company to Executive nor any provision contained herein or in the Purchase
Agreement shall entitle Executive to remain in the employment of the Company, or
any Subsidiary of the Company, or affect the right of the Company or any
Subsidiary to terminate Executive's employment at any time for any reason,
subject to the terms and conditions of the Employment Agreement.
2. Vesting of Shares.
(a) Except as otherwise provided in Section 2(b) below, the
Executive Shares purchased hereunder will become vested in accordance with the
following schedule, if as of each such date Executive is still employed by the
Company or any Subsidiary of the Company:
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CUMULATIVE PERCENTAGE OF
DATE EXECUTIVE 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%
(b) Notwithstanding the foregoing or anything herein to the
contrary, upon the occurrence of a Sale of the Company, all Executive 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 Executive
and certain other parties, that Executive 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). Executive Shares which have become vested hereunder are referred
to herein as "Vested Shares," and all other Executive Shares are referred to
herein as "Unvested Shares."
(c) The Executive 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 Executive ceases to be employed by the Company or
any Subsidiary for any reason (a "Separation"), the Shares and all other
Executive Securities (whether held by Executive or one or more of Executive'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 Executive Shares purchased
hereunder shall be subject to repurchase as follows: (i) the purchase price for
each Unvested Share of Common Stock will be the Executive's Original Cost for
such share; provided, that if Executive's employment is terminated by the
Company or a Subsidiary with Due Cause or by the Executive without Good Reason,
then the purchase price for each Unvested Share of Common Stock will be the
lesser of (a) Executive's Original Cost for such share and (b) the Fair Market
Value for such share, and (ii) the purchase price for each Vested Share of
Common Stock will be the Fair Market Value for such share; provided that if
Executive's employment is terminated by the Company or a Subsidiary with Due
Cause or by the Executive without Good Reason, then the
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purchase price for each Vested Share of Common Stock will be the lesser of (a)
Executive's Original Cost for such share and (b) 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 Executive 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 Executive'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 Executive Securities by delivering written
notice (the "Repurchase Notice") to the holder or holders of the Executive
Securities within 60 days after the Separation or, if later, within 60 days of
the exercise of the option pursuant to the Nonstatutory Stock Option Agreement.
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 Executive Securities held by Executive at the time of delivery of the
Repurchase Notice. If the number of any or all types of Executive Securities
then held by Executive 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 Executive
Securities under this Agreement, pro rata according to the number of the
applicable type of Executive 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 Executive and the
other holders of Executive Securities (if any) pro rata according to the number
of the applicable type of Executive Securities to be purchased from such Person.
(e) If, following a Separation due to the death of the Executive,
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
Executive shall have 90 days from the expiration of the Company's 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 Executive 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 Executive 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 Executive 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 Executive 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 Executive 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
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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 Executive Securities (including representations and
warranties regarding good title to the Executive Securities, the absence of any
liens on such title or other encumbrances with respect to the Transfer of the
Executive Securities and the ability of such sellers to consummate the sale).
(g) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Executive 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
Executive 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.
(h) Notwithstanding anything to the contrary contained in this
Agreement, if Executive 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 Executive'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 Executive Securities.
(a) Transfer of Executive Securities. Executive shall not Transfer
any interest in any Executive 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 Executive Securities pursuant to
applicable laws of descent and distribution or (ii) Transfer of shares of
Executive Securities among Executive's Family Group; provided that in each case
such restrictions will continue to be applicable to the Executive Securities
irrespective of any such Transfer. Any transferee of Executive 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 Executive Securities set forth in this Section 4 will continue with respect
to each Executive Security until the earlier of (i) a Qualified Public Offering;
or (ii) a Sale of the Company.
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5. Registration. Executive 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. Executive 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. Executive 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 Executive Securities.
(a) Legend. The certificates representing the Executive 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 (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 AN EXECUTIVE 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 Executive Securities may
transfer any Executive 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.
"Due Cause" has the meaning set forth in the Employment Agreement.
"Employment Agreement" means that certain Employment Agreement of even
date herewith between VICORP Restaurants, Inc. and the Executive.
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"Executive's Family Group" means Executive's spouse and descendants
(whether natural or adopted), any trust solely for the benefit of Executive
and/or Executive's spouse and/or descendants and any retirement plan for the
Executive.
"Executive Securities" means the Shares and any other securities of the
Company held by Executive or any of Executive's transferees permitted hereunder.
All Executive Securities will continue to be Executive Securities in the hands
of any holder other than Executive (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 Executive Securities
will succeed to all rights and obligations attributable to Executive as a holder
of Executive Securities hereunder. Executive Securities will also include shares
of the Company's capital stock or other securities of the Company issued with
respect to Executive 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 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 Executive disagrees with the Board
Calculation, the Executive may, within 30 days after receipt of the Board
Calculation, deliver a notice (an "Objection Notice") to the Company setting
forth the Executive's calculation of Fair Market Value. The Board and the
Executive 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
Executive 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.
"Good Reason" has the meaning set forth in the Employment 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
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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.
"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.
"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 Executive 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
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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.
x/x Xxxx Xxxxx Xxxxxxxx
Xxxxx 0000
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Executive
Xxxxxx Xxxxxxxxxx
0000 X. Xxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxxxx & Xxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, 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 Executive 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 Executive 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.
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(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.
Executive 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 Executive 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.
(e) Successors and Assigns.
(i) All Executive Securities will continue to be
Executive Securities in the hands of any holder other than Executive,
including any of Executive'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
Executive Securities will succeed to all rights and obligations
attributable to Executive as a holder of Executive Securities
hereunder.
(ii) Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by Executive,
the Company, the Investors and their respective successors and assigns
(including subsequent holders of Executive Securities); provided that
the rights and obligations of Executive under this Agreement shall not
be assignable except in connection with a permitted transfer of
Executive 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, Executive 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 Xxxx County, Illinois. Executive 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 Xxxx County,
Illinois.
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(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
Executive. 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.
(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
Executive. The Company and any Subsidiary shall be entitled to deduct or
withhold from any amounts owing from the Company or any Subsidiary to the
Executive any federal, state, local or foreign withholding taxes, excise taxes,
or employment taxes ("Taxes") imposed with respect to the Executive's
compensation or other payments from the Company or any Subsidiary or the
Executive'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 Executive 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
Executive's employment 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
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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.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Management Agreement
as of the date first written above.
VI ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Its: Executive Vice President
/s/ Xxxxxx Xxxxxxxxxx
--------------------------------
XXXXXX XXXXXXXXXX
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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:
Xxxxxx Xxxxxxxxxx
_________________
_________________
Social Security # ________
2. DESCRIPTION OF PROPERTY WITH RESPECT TO WHICH THE ELECTION IS BEING
MADE:
45,000 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 an employee of the Company
for a reason other than cause, 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 an employee of the Company for a reason other than cause. 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 an employee of
the Company for a reason other than cause.
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.
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
_____________________________
Xxxxxx Xxxxxxxxxx
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.
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