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Exhibit A
[Copy of Stock Transfer Agreement]
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STOCK TRANSFER AGREEMENT
FOR RESTRICTED STOCK AWARDS
THIS STOCK TRANSFER RESTRICTION AGREEMENT is made as of the 30th day of
September, 1997, by and between Xxxxxx Capital Group, Inc., a Delaware
corporation (the "Company"), and (the "Stockholder");
WITNESSETH
WHEREAS, Stockholder is a Director of the Company or one of its
subsidiaries; and WHEREAS, Stockholder is or may become the owner of shares of
Common Stock of the Company (the "Shares") acquired following the Vesting Date
(as defined in the Restricted Stock Agreement (the "Restricted Stock Agreement")
between the Company and the Stockholder issued under the Xxxxxx Capital Group,
Inc. 1997 Incentive Compensation Plan (the "Plan") of Restricted Shares granted
by the Company to Stockholder; and
WHEREAS, it is a condition to the grant of such Restricted Shares that
Stockholder and the Company enter into a stock transfer restriction agreement in
substantially the form hereof, and Stockholder agreed to enter into such an
agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter contained, and in consideration of each of the parties
hereto entering into this Agreement, and intending to be legally bound hereby,
the parties agree as follows:
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1. RESTRICTIONS ON TRANSFER. Except as otherwise provided in Sections 2,
3, or 10 hereof, or until this Agreement terminates under Section 9, the
Stockholder agrees not to sell, transfer, assign, give, pledge, or otherwise
dispose of or encumber any part or all of the Shares, whether voluntarily, by
operation of law, or otherwise without the prior written consent of the Board of
Directors of the Company. Any attempted transfer in violation of this Agreement
shall be considered null and void and the Stockholder shall continue to be
treated as the owner of the Shares for all purposes of this Agreement and shall
continue to be bound by all of the terms and provisions hereof.
2. STOCKHOLDER'S "PUT" OPTION.
(a) During the put period, as defined herein, the Stockholder shall have
an option to sell to the Company, a number of Vested Shares (as defined in the
Restricted Stock Agreement) limited to the number that is sufficient to satisfy
the Stockholder's Federal and State income tax liability that results from the
vesting of the Shares. The put period shall be the 60-day period commencing on
the Vesting Date of the Shares. The Stockholder's option to sell the Shares to
the Company shall be effective upon the Stockholder notifying the Company in
writing. Upon the exercise by the Stockholder of the option hereunder, the
Company shall immediately become obligated to pay to the Stockholder as the
purchase price for the Shares so acquired by the Company, the price established
in Section 4 hereof. The closing shall take place as soon as practicable after
the exercise by the Stockholder of its option hereunder, but in no event more
than sixty (60) days after the delivery by the Stockholder of its written notice
of option exercise.
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(b) To the extent the Company does not exercise its option under Section
3(a) hereof within six months following the termination of the Stockholder's
employment with the Company or one of its subsidiaries or affiliates, the
Stockholder shall thereafter have an option to sell to the Company, subject to
the limitations set forth in this Section 2(b), all or a portion of the Shares
owned by the Stockholder at the time of such option exercise. Such option shall
be exercisable during the 60-day period after the expiration of the
above-referenced six-month time period, upon the Stockholder notifying the
Company, in writing, of Stockholder's exercise of the option hereunder. Upon the
exercise by the Stockholder of the option hereunder, the Company shall
immediately become obligated to pay to the Stockholder as the purchase price
paid for the Shares so acquired by the Company, the price established in Section
4 hereof. Payment of such purchase price shall be made pursuant to the terms
specified in Section 5 hereof. The closing shall take place as soon as
practicable after the exercise by the Stockholder of its option hereunder, but
in no event more than sixty (60) days after the delivery by the Stockholder of
its written notice of option exercise.
3. COMPANY'S PURCHASE OPTIONS.
(a) In the event that the Stockholder should cease to be a Director of
the Company or one of its subsidiaries or affiliates, then as a result the
Company shall have an option to purchase from the Stockholder all or any part of
the Shares owned by the Stockholder at the time of such option exercise. Such
option shall be exercisable, in whole or in part, at any time and from time to
time following the Stockholder's end of service as a Director under
circumstances described in the preceding sentence, upon the Company notifying
the Stockholder
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in writing, of its exercise of the option hereunder and the number of Shares
with respect to which such option is being exercised. Upon the exercise by the
Company of its option hereunder, the Stockholder shall immediately become
obligated to sell and the Company shall immediately become obligated to pay to
the Stockholder as the purchase price for the Shares so acquired by the Company,
the price established in Section 4 hereof. Payment of such purchase price shall
be made pursuant to the terms specified in Section 5 hereof. The closing shall
take place as soon as practicable after the exercise by the Company of its
option hereunder, but in no event more than sixty (60) days after the delivery
by the Company of its written notice of option exercise.
(b) If all or any part of the Shares held by the Stockholder shall be
subject to an involuntary transfer to any person or entity whether by operation
of law or otherwise (such as, without limitation, to a trustee in bankruptcy, a
purchaser in any creditor's or court sale, or conservator), or a transfer in
accordance with any divorce proceeding (collectively a "Transfer Event"), then
as a result of such event, the Company shall have an option to purchase from the
transferee that number of Shares which are subject to the Transfer Event. Such
option shall be exercisable for a period of sixty (60) days after the Company's
receipt of actual notice of the Transfer Event, and shall be exercised by the
delivery of written notice of option exercise by the Company to the Stockholder
and the Stockholder's transferee. Upon the exercise by the Company of its option
hereunder, the Company shall become obligated to pay to the transferee, as the
purchase price for the Shares so acquired by the Company, the price established
in Section 4 hereof. Payment of such purchase price shall be on the terms set
forth in Section 5 hereof. The closing shall take place as soon as practicable
after the exercise by the Company of its option
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hereunder, but in no event more than thirty (30) days after the exercise by the
Company of its option.
(c) The Company may, in its discretion, assign its right to purchase the
Shares under Sections 3(a) and (b) and its obligation to purchase the Shares
under Section 2 to the ESOP.
4. PURCHASE PRICE.
(a) Except as otherwise provided in Section 4(b), the purchase price for
each Share to be purchased by the Company pursuant to this Agreement from a
Stockholder or his estate, heirs or personal representative or a transferee
(collectively referred to as the "Seller") shall equal the Fair Market Value
determined as of the date of purchase. The "Fair Market Value" shall be based
upon the fair market value of the shares of stock of the Company held by the
Xxxxxx Capital Group, Inc. 401(k)/Profit Sharing and Employee Stock Ownership
Trust (the "ESOP Valuation"), after applying a nonmarketable minority interest
discount to the ESOP Valuation, as determined as by an independent appraiser.
(b) Notwithstanding the above, if the purchase of Shares by the Company
under this Agreement is pursuant to Section 3(a) hereof following the
Stockholder's end of service as a Director for "cause" (as defined below), the
purchase price per Share shall be the lower of (i) the purchase price per share
originally paid by the Stockholder to acquire his or her Shares or (ii) the Fair
Market Value per share (determined in accordance with Section 4(a). For purposes
of this Agreement, "cause" shall mean release from duties as a Director by the
Company or one of its subsidiaries or affiliates because of (i) an act of fraud,
embezzlement or theft in connection with the Stockholder's duties or in the
course of the Stockholder's service period as Director, (ii)
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unreasonable neglect or refusal by Stockholder to perform his or her duties
(other than any such failure resulting from Stockholder's incapacity due to
permanent disability), (iii) the engaging by Stockholder in willful, reckless,
or grossly negligent misconduct which is or may be materially injurious to the
Company or its subsidiaries or affiliates, or (iv) Stockholder's conviction of
or plea of guilty or nolo contendere to a felony. For purposes of this option,
the Stockholder will be considered permanently disabled if he or she is unable
to perform his or her stated duties with the Company by reason of illness,
accident or other incapacity and does not engage in any occupation or employment
for wage or profit for which the Stockholder is reasonably qualified by
education, training, or experience, as determined by the Company in its sole
discretion.
5. PAYMENT FOR SHARES. Shares purchased pursuant to the provisions of
this Agreement shall be paid for in full upon the closing date. Notwithstanding
the preceding sentence, in the event the aggregate consideration to be paid to
the Seller under this Agreement exceeds $10,000.00, if the Company so elects the
purchase price may be paid for in installments and shall be evidenced by a
promissory note dated the date of the closing of the purchase. Such note shall
be payable in three (3) equal annual installments, with the first installment to
be due and payable upon the closing date and the remaining installments to be
due and payable on the second through and including the third annual
anniversaries, respectively, of the closing, and shall provide for interest on
the principal outstanding from time to time at a fixed rate per annum equal to
the prime rate of interest announced by Xxxx Xxxxxx as its prime rate as of the
closing, or the highest lawful rate which may be charged on this transaction,
whichever is less. The Company shall, in all events, have the right to prepay
the entire principal balance of any note delivered under this Section 5 at any
time or from time to time without a premium or a penalty.
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Shares purchased pursuant to the provisions of this Agreement shall be paid for
in full upon the closing date.
6. DELIVERY OF STOCK CERTIFICATES AND OTHER DOCUMENTS UPON A REPURCHASE
OF SHARES. Simultaneously with the transfer of the purchase price by the Company
under Section 6 hereof (whether in cash or by delivery of a note) as a result of
a repurchase of Shares by the Company, the Seller of the Shares shall deliver to
the Company the certificates representing the Shares being sold, properly
endorsed for transfer, together with any other assignments and documents as may
be necessary to transfer title to the Shares.
7. NOTICE OF RESTRICTIONS. The certificates representing the Shares
affected by this Agreement shall be inscribed with the following legend:
"The shares of stock represented by this certificate are subject to, and
are transferable only in compliance with, the terms and conditions of a
certain Stock Transfer Agreement dated February 9, 1998 between the
registered holder of these shares and Xxxxxx Capital Group, Inc., which
Agreement is on file with the Secretary of Xxxxxx Capital Group, Inc.,
and the holder hereof accepts and holds this certificate subject to and
with notice of all of the terms, conditions and provisions of said
Agreement and agrees to be bound thereby."
8. DEPOSIT OF CERTIFICATES. The certificates representing the Shares,
together with applicable stock powers duly executed by the Stockholder in blank,
shall be held by the Company subject to the terms of this Agreement. The Company
agrees to release and deliver to the Stockholder any such certificates when they
are no longer subject to the terms of this Agreement or in order to facilitate
any sale or other disposition thereof permitted hereunder.
9. PUBLIC COMPANY. If shares of Common Stock of the Company are sold to
the public pursuant to a registration statement filed under the Securities Act
of 1933, as amended,
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or if shares of Common Stock of the Company are registered pursuant to Section
12 or Section 15 of the Securities Exchange Act of 1934, as amended, the Company
shall be deemed a "Public Company". If the Company becomes a Public Company at
any time hereafter, unless an event which gives rise to a purchase option or
obligation in favor of the Company has already occurred, the Shares held by the
Stockholder at the time the Company becomes a Public Company shall thereafter be
free of the terms of this Agreement and the rights, options or obligations under
Sections 1, 2, 3, and 10 hereof shall terminate.
10. CHANGE OF CONTROL OF THE COMPANY. Notwithstanding anything to the
contrary in this Agreement, if the Board of Directors of the Company and the
holders of a majority of the Company's outstanding shares of Common Stock
approve a sale of the Company that constitutes a Change of Control of the
Company (as defined below), the Company will give the Stockholder thirty (30)
days' notice of the proposed transaction. The Company will, at the Stockholder's
request given by him or her within five (5) days of the receipt of notice
required under the preceding sentence, cause the buyer also to offer to purchase
all, but not less than all, of the Shares held by the Stockholder and, upon the
request of the Company within such 5-day period, the Stockholder shall, upon the
request of the Company, be obligated to sell his or her Shares to the buyer, for
the same price and on the same terms and conditions as the buyer's purchase of
the shares of Common Stock from the majority shareholders of the Company. The
Stockholder further agrees to take all necessary and desirable actions in
connection with the consummation of a Change of Control of the Company. For
purposes of this Agreement, a "Change of Control of the Company" shall occur:
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(i) upon the vote of the shareholders of the Company approving a merger
or consolidation in which the Company's shareholders immediately prior to
the effective time of the merger or consolidation will beneficially own
immediately after the effective time of the merger or consolidation
securities of the surviving or new corporation having less than 50% of the
"voting power" of the surviving or new corporation, including "voting power"
exercisable on a contingent or deferred basis as well as immediately
exercisable "voting power"; provided, however, that no such merger or
consolidation shall constitute a "change of control" in the event that
following such transaction the Xxxxxx Family (as defined below) owns,
directly or indirectly, 30% or more of the combined "voting power" of the
surviving or new corporation's outstanding securities, excluding "voting
power" exercisable on a contingent or deferred basis.
(ii) upon the consummation of a sale, lease, exchange or other transfer
or disposition by the Company of all or substantially all of the assets of
the Company on a consolidated basis, provided, however, that the mortgage,
pledge or hypothecation of all or substantially all of the assets of the
Company on a consolidated basis, in connection with a bona fide financing
shall not constitute a Sale of the Company; or
(iii) when any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 of the Securities Exchange Act as in effect
on date hereof, but excluding (a) any Company sponsored employee benefit
plan and (b) any member of the Xxxxxx Family), directly or indirectly, of
shares of Company stock such that the Xxxxxx Family
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owns less than 30% of the combined "voting power" of the Company's then
outstanding securities, excluding "voting power" exercisable on a contingent
or deferred basis.
For purposes of this Agreement, the Xxxxxx Family means (i) Xxxxxx X. Xxxxxx and
Xxxx Xxxxxx, (ii) a descendant of Xxxxxx X. Xxxxxx and Xxxx Xxxxxx, (iii) any
estate, trust, guardianship or custodianship for the primary benefit of any
individual described in (i) or (ii) above, or (iv) a proprietorship,
partnership, limited liability company, or corporation controlled by and
substantially all the interest in which are owned, directly or indirectly, by
one or more individuals or entities described in (i), (ii), or (iii) above.
11. COMPANY'S OBLIGATION REGARDING CERTAIN RESTRICTED SHARES. In the
case of Restricted Shares that become Vested Shares (as defined in the
Restricted Stock Agreement) upon the Stockholder's death, any such shares of
common stock that become Vested Shares pursuant to the Restricted Stock
Agreement will be subjected to all of the terms and conditions of this
Agreement.
12. NOTICE. Any and all notices, designations, consents, offers,
acceptances or any other communication provided for herein shall be given in
writing and personally delivered or sent by United States certified mail, return
receipt requested, postage prepaid, which shall be addressed, in the case of the
Company, to its principal office in the State of Illinois, and in the case of
the Stockholder, to his or her last known address as reflected in the Company's
records. Notices sent by United States certified mail will be deemed received on
the second business day following mailing.
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13. NECESSARY DOCUMENTS. The Stockholder and his or her administrators,
executors, heirs or personal representatives shall execute and deliver all
necessary documents required to carry out the terms of this Agreement.
14. GOVERNING LAW. This Agreement shall be subject to and governed by
the laws of the State of Illinois, irrespective of the fact that the Stockholder
is or may become a resident of a different state.
15. INVALID PROVISION. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
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16. BINDING EFFECT. This Agreement shall be binding upon the Company,
Stockholder, and their respective heirs, legal representatives, executors,
administrators, successors and assigns. Any rights given or duties imposed upon
the estate of the Stockholder upon his or her death shall inure to the benefit
of and be binding upon the fiduciary of the decedent's estate in his or her
fiduciary capacity.
17. ENTIRE AGREEMENT.
(a) This Agreement constitutes the entire agreement among the parties
and contains all of the agreements among the parties with respect to the subject
matter hereof. This Agreement supersedes any and all other agreements or
understandings, either oral or written, among the parties hereto with respect to
the subject matter hereof. Notwithstanding anything to the contrary in this
Agreement whether expressed or implied, this Agreement shall only apply to
shares of stock of the Company acquired pursuant to the grant under the Plan,
including any additional shares received by Stockholder in connection with such
shares pursuant to stock dividends, stock splits, or similar transactions. This
Agreement shall not apply to any shares of capital stock of the Company which
the Stockholder owns and which were acquired other than pursuant to grants under
the Plan.
(b) No change or modification of this Agreement shall be valid unless
the same shall be in writing and signed by the Stockholder and the Company. No
waiver of any provision of this Agreement shall be valid unless it is in
writing.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXX CAPITAL GROUP, INC.
By
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Its: President
STOCKHOLDER
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