Exhibit 10.10
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of _____________, 19__, between
Gulfstream Aerospace Corporation, a Delaware corporation (the "Corporation"),
and the undersigned (the "Stockholder"), who was granted the right and option
(the "Option") to purchase shares of Common Stock, par value $.01 per share, of
the Corporation (the "Common Stock") pursuant to the terms and conditions of the
Corporation's Stock Option Plan (the "Plan") and a Stock Option Agreement, dated
as of ____________, 19__, between the Corporation and the Stockholder (the
"Option Agreement").
WHEREAS, the Option Agreement requires the Stockholder to enter into
a Stockholder's Agreement upon and as a condition to the exercise of the Option;
WHEREAS, the Stockholder wishes to exercise the Option to purchase
shares of Common Stock; and
WHEREAS, the Stockholder and the Corporation wish to provide for
certain arrangements with respect to the Stockholder's rights to hold and
dispose of the shares of Common Stock acquired by the Stockholder upon the
exercise of the Option.
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale of Common Stock. The Stockholder hereby elects to exercise
the Option in respect of the shares of Common Stock set forth in Schedule I
hereto. Promptly upon payment in full of the purchase price for the shares of
Common Stock in respect of which the Option is being exercised and compliance by
the Stockholder with the other provisions of Section 5.3 of the Option
Agreement, the Corporation shall issue to the Stockholder a stock certificate
representing the shares of Common Stock in respect of which the Option is being
exercised and shall enter the name of the Stockholder as a stockholder of record
of such shares on the books of the Corporation (the "Closing").
2. Rights and Restrictions on Disposition of Common Stock.
2.1. No Sale or Transfer. The Stockholder shall not sell, transfer,
assign, exchange, pledge, encumber or otherwise dispose of any shares of Common
Stock acquired hereunder, or grant any option or right to purchase such shares
or any legal or beneficial interest therein, except in accordance with the
provisions of this Agreement.
2.2. Employment Termination.
(a) Except (i) as provided in this Section 2.2(a) or (ii) as may
be agreed between the Corporation and the Stockholder, and subject to Section
2.6 hereof, if the Stockholder shall no longer be employed on a full-time basis
by the Corporation or any of its subsidiaries, or shall cease to serve as a
director of the Corporation or any of its subsidiaries, for any reason
whatsoever other than as a result of death, permanent disability or Normal
Retirement ("Terminated" or a "Termination"), irrespective of whether the
Stockholder receives, in connection with the Termination, any severance or other
payment from the Corporation or any of its subsidiaries under any employment
agreement or otherwise (such Stockholder being referred to herein as a
"Terminated Employee"), the Corporation shall be entitled, at its option
exercisable upon written notice to the Terminated Employee within 30 days
following the date of Termination (the "Election Notice"), to purchase all of
the shares of Common Stock then held by (x) the Terminated Employee or (y) the
guardian, executor, administrator or other legal representative (each, a "Legal
Representative") of the Terminated Employee. All references herein to
"Stockholder" shall be deemed to include references to the Legal Representative
thereof, if any, unless the context otherwise requires. "Normal Retirement"
means the voluntary retirement of the Stockholder on or after his 65th birthday.
(b) The purchase price per share of the shares of Common Stock
purchased pursuant to Section 2.2(a) hereof (the "Purchase Price") shall be
equal to the average of the closing sales prices of a share of Common Stock on
the New York Stock Exchange for the 30 trading days next preceding the date of
Termination (the "Market Price Per Share").
The Election Notice shall be accompanied by a certificate of the
chief financial officer of the Corporation setting forth the Market Price Per
Share and stating that the Market Price Per Share has been computed in
accordance with the first paragraph of this Section 2.2(b) hereof (the "Market
Price Certificate"), and the Market Price Per Share set forth on the Market
Price Certificate shall be final and binding on the Corporation and the
Terminated Employee for purposes of this Agreement.
(c) Subject to Section 2.2(d) hereof, the closing of any purchase
of shares of Common Stock provided for in Section 2.2(a) hereof shall take place
at the principal office of the Corporation on the later of (i) 40 days after the
delivery of the Election Notice to the Terminated Employee or (ii) (if
applicable) 70 days after the appointment of a Legal Representative. At the
Closing, the Terminated Employee shall sell, convey, transfer, assign and
deliver to the Corporation all right, title and interest in and to the shares of
Common Stock, which shall constitute (and, at the Closing, the Terminated
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Employee shall certify the same to the Corporation in writing) good and
unencumbered title to such shares, free and clear of all liens, security
interests, encumbrances and adverse claims of any kind and nature, and shall
deliver to the Corporation a certificate representing the shares duly endorsed
for transfer, or accompanied by appropriate stock transfer powers duly endorsed,
with signatures guaranteed by a commercial bank, trust company or registered
broker dealer, and with all necessary transfer tax stamps affixed thereto at the
expense of the Terminated Employee. The Corporation shall deliver to the
Terminated Employee, in full payment of the purchase price for the shares of
Common Stock purchased, a check payable to the order of the Terminated Employee
in the amount of the aggregate purchase price for the shares purchased from the
Terminated Employee.
(d) The Stockholder understands and agrees that any purchase of
shares of Common Stock by the Corporation pursuant to this Section 2.2 may
require the consent of some or all of the lenders pursuant to credit agreements
to which the Corporation and/or any of its affiliates are now or hereafter may
become parties. If the closing of any purchase provided for in this Section 2.2
cannot be consummated by the date which would otherwise be the closing date
pursuant to Section 2.2(c) hereof (the "Original Closing Date") because of the
failure of the Corporation or any of its affiliates, for whatever reason, to
receive any necessary consent from the lenders (and the Corporation covenants to
request, or cause its affiliates to request, the lenders to give any such
consent) or for any other reason not within the control of the Corporation or
any of its affiliates, then the closing shall take place on the third business
day after which the purchase may be consummated (the "Deferred Closing Date").
In the case of any delay in the closing of any purchase provided for in this
Section 2.2, there shall be paid on the Deferred Closing Date, together with any
purchase price payable for the shares of Common Stock owned by the Terminated
Employee, interest on the amount of such purchase price from (and including) the
Original Closing Date to (but not including) the Deferred Closing Date, at an
annual rate equal to the rate of interest publicly announced by The Chase
Manhattan Bank from time to time as its reference rate.
2.3. Participation in Sale of Common Stock. The Stockholder shall
participate proportionately (and the FL Partnerships (as defined in Section 5.1
hereof) shall allow the Stockholder to participate proportionately) in any sale
of all or a portion of the shares of Common Stock owned by any of the FL
Partnerships to any person who is not an affiliate or a partner of any of the FL
Partnerships or an affiliate of such partner (a "Third Party"), by selling to
the Third Party the same percentage of the Stockholder's shares of Common Stock
as the FL Partnerships propose to sell to the Third Party of the aggregate
shares of Common Stock owned by all of the FL Partnerships. For purposes of
determining the number of shares of Common Stock in respect of which the
Stockholder may participate pursuant to this Section 2.3, the Stockholder shall
be deemed to own (a) the shares of Common Stock subject to this Agreement, (b)
if the Stockholder has not been
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Terminated, the shares of Common Stock issuable upon exercise of the unexercised
portion of the Option and (c) if the Stockholder has been Terminated, the shares
of Common Stock issuable upon the exercise of the Exercisable Portion of the
Option (as defined in the Option Agreement), if any. The Corporation shall
notify the Stockholder in writing of the FL Partnerships' intention to effect a
sale to a Third Party, the identity of the Third Party and the nature and per
share amount of consideration to be paid to each seller by such Third Party, at
least 10 days (or such shorter time as the Corporation deems practicable) before
the closing of any such proposed sale of Common Stock. Any sale of shares of
Common Stock by the Stockholder pursuant to this Section 2.3 shall be for the
same consideration per share, on the same terms and subject to the same
conditions as the sale of shares of Common Stock owned by the FL Partnerships.
The Stockholder shall pay a proportionate share of any of the expenses and shall
be responsible for a proportionate share of any liabilities and obligations
(including liabilities and obligations for indemnification, amounts paid into
escrow and for post-closing purchase price adjustments) (collectively, "Expenses
of Sale") incurred by the selling stockholders in connection with any sale
pursuant to this Section 2.3 that are not paid by the Corporation.
2.4. Public Offering of Common Stock.
(a) The Stockholder shall participate proportionately (and the FL
Partnerships shall allow the Stockholder to participate proportionately) in any
public offering of all or a portion of the shares of Common Stock owned by any
of the FL Partnerships, by selling in the public offering the same percentage of
the Stockholder's shares of Common Stock as the FL Partnerships propose to sell
in the public offering of the aggregate shares of Common Stock owned by all of
the FL Partnerships. For purposes of determining the number of shares of Common
Stock in respect of which the Stockholder may participate pursuant to this
Section 2.4, the Stockholder shall be deemed to own (a) the shares of Common
Stock subject to this Agreement, (b) if the Stockholder has not been Terminated,
the shares of Common Stock issuable upon exercise of the unexercised portion of
the Option and (c) if the Stockholder has been Terminated, the shares of Common
Stock issuable upon the exercise of the Exercisable Portion of the Option, if
any. The Corporation shall cause the Stockholder's portion of the shares to be
included in the offering. The Stockholder shall pay a proportionate share of all
Expenses of Sale incurred by the selling stockholders in connection with such
public offering that are not paid by the Corporation, including indemnifying the
underwriters, on a proportionate basis, to the same extent as the FL
Partnerships are required to indemnify such underwriters.
(b) In connection with any proposed public offering of securities
of the Corporation by any of the FL Partnerships or the Corporation, the
Stockholder agrees (i) to supply any information reasonably requested by the
Corporation in connection with the
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preparation of a registration statement and/or any other documents relating to
such public offering, and (ii) to execute and deliver any agreements and
instruments reasonably requested by the Corporation to effectuate such public
offering, including, without limitation, an underwriting agreement, a custody
agreement and a "holdback" agreement pursuant to which the Stockholder will
agree not to sell or purchase any securities of the Corporation (whether or not
such securities are otherwise governed by this Agreement) for the same period of
time following the public offering as is agreed to by the FL Partnerships with
respect to themselves. If the Corporation requests that the Stockholder take any
of the actions referred to in clause (i) or (ii) of the previous sentence, the
Stockholder shall take such action promptly but in any event within three days
following the date of such request.
2.5. Sale of All of their Capital Stock by the FL Partnerships.
Notwithstanding any other provision of this Agreement, if the FL Partnerships
shall propose to sell or exchange (in a business combination or otherwise) all
of their shares of capital stock of the Corporation in a bona fide arm's-length
transaction, the FL Partnerships, at their option, may require that the
Stockholder sell all of its shares of Common Stock in the same transaction and,
if stockholder approval of the transaction is required, that the Stockholder
vote his shares in favor thereof. In calculating the aggregate consideration
paid with respect to the Common Stock, the Board of Directors of the
Corporation, in good faith, shall determine the fair market value of all
property (other than cash) received in the sale or exchange and its
determination shall be final and binding on the holders of capital stock of the
Corporation. The Stockholder shall pay his proportionate share of all Expenses
of Sale incurred by the selling stockholders in connection with such sale that
are not paid by the Corporation.
2.6. Termination of Restrictions and Rights. Notwithstanding any other
provision of this Agreement, but subject to the restrictions of all applicable
federal and state securities laws, including the restrictions in this Agreement
relating thereto, after one or more public offerings which result in the shares
of capital stock of the Corporation owned by the FL Partnerships immediately
thereafter constituting, in the aggregate, less than 20% of the then outstanding
voting power of the Corporation, any and all shares of Common Stock owned by the
Stockholder may be sold, transferred, assigned, exchanged, pledged, encumbered
or otherwise disposed of, and the Stockholder may grant any option or right to
purchase, or may continue to hold, such shares or any legal or beneficial
interest therein, free of the restrictions contained in this Agreement,
including the restriction requiring resale by the Stockholder to the Corporation
of all or a portion of the shares of Common Stock owned by him, and the
Stockholder shall no longer be entitled to any of the rights contained in this
Agreement.
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3. Prohibited Activities.
3.1. Prohibition Against Certain Activities. The Stockholder agrees that
(a) he will not at any time during his employment (other than in the course of
his employment) with the Corporation or any affiliate thereof, or after any
Termination, directly or indirectly disclose or furnish to any other person or
use for his own or any other person's account any confidential or proprietary
knowledge or any other information which is not a matter of public knowledge
obtained during the course of his employment with, or other performance of
services for, the Corporation or any affiliate thereof or any predecessor of any
of the foregoing, no matter from where or in what manner the Stockholder may
have acquired such knowledge or information, and he shall retain all such
knowledge and information in trust for the benefit of the Corporation, its
affiliates and the successors and assigns of any of them, (b) if he is
Terminated, he will not for three years following the Termination directly or
indirectly solicit for employment, including, without limitation, recommending
to any subsequent employer the solicitation for employment of, any person who at
the time of the solicitation is employed by the Corporation or any affiliate
thereof, (c) he will not at any time during his employment or after any
Termination publish any statement or make any statement (under circumstances
reasonably likely to become public or that he might reasonably expect to become
public) critical of the Corporation or any affiliate of the Corporation, or in
any way adversely affecting or otherwise maligning the business or reputation of
any of the foregoing entities, and (d) the Stockholder will not breach the
provisions of Section 2.1 hereof (any activity described in clause (a), (b), (c)
or (d) of this Section 3.1 being herein referred to as a "Prohibited Activity").
3.2. Right to Purchase Shares. The Stockholder understands that the
Corporation has granted the Option to the Stockholder to reward the Stockholder
for the Stockholder's future efforts and loyalty to the Corporation and its
affiliates by giving the Stockholder the opportunity to participate in the
potential future appreciation of the Corporation. Accordingly, (a) if the
Stockholder engages in any Prohibited Activity, or (b) if, at any time during
the Stockholder's employment with the Corporation or any affiliate or during the
three years following the Stockholder's Termination, the Stockholder engages in
any Competitive Activity (as defined below), or (c) if, at any time (whether
during the Stockholder's employment or after any Termination), the Stockholder
is convicted of a crime against the Corporation or any affiliate, then, in
addition to any other rights and remedies available to the Corporation, the
Corporation shall be entitled, at its option, exercisable by written notice (the
"Repurchase Notice") to the holder, to purchase all of the shares of Common
Stock then held by the Stockholder. The term "Competitive Activity" shall mean
engaging in any of the following activities: (i) serving as a director of any
person (other than the Corporation or any of its affiliates) that competes
either directly or indirectly through one or more affiliates with any of the
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businesses conducted by the Corporation or any of its affiliates (a
"Competitor"), (ii) directly or indirectly through one or more intermediaries
(X) controlling any Competitor or (Y) owning any equity or debt interests in any
Competitor (other than equity or debt interests which are publicly traded and do
not exceed 2% of the particular class of interests outstanding) (it being
understood that, if interests in any Competitor are owned by an investment
vehicle or other entity in which the Stockholder owns an equity interest, a
portion of the interests in such Competitor owned by such entity shall be
attributed to the Stockholder, such portion determined by applying the
percentage of the equity interest in such entity owned by the Stockholder to the
interests in such Competitor owned by such entity), (iii) directly or indirectly
soliciting, diverting, taking away, appropriating or otherwise interfering with
any of the customers or suppliers of the Corporation or any subsidiary or any
affiliate of the Corporation of which the Stockholder owns shares of capital
stock or any other equity interest, or (iv) employment by (including serving as
an officer or director of) or providing consulting services to any Competitor.
For purposes of this Section 3.2, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of any Competitor, whether through the ownership of
equity interests, by contract or otherwise.
3.3. Purchase Price. The purchase price per share of any shares of
Common Stock purchased pursuant to this Article 3 shall be equal to the lesser
of (x) the per share exercise price at which the shares acquired hereunder were
purchased (adjusted to reflect any stock split, stock dividend or other capital
transaction effected after the date hereof and prior to the date of the
Repurchase Notice) and (y) the Market Price Per Share, except that the 30 day
period shall be calculated with reference to the date of the Repurchase Notice
(such purchase price per share being referred to herein as the "Termination
Price"). The closing of such purchase shall take place at the principal office
of the Corporation 30 days following the date of the Repurchase Notice, and the
provisions of Section 2.2(c) (except for the first sentence thereof) shall apply
to such closing. Notwithstanding anything herein to the contrary, from and after
the date of the Repurchase Notice, the Stockholder shall have no rights with
respect to any shares of Common Stock which he is required to sell to the
Corporation pursuant to this Section 3.3, except to receive the Termination
Price therefor.
3.4. Limitation of Purchase Price. Notwithstanding anything to the
contrary set forth in Section 2.3, 2.4 or 2.5 hereof, the Stockholder shall not
be entitled to receive as consideration for the Stockholder's shares of Common
Stock in connection with any sale by the Stockholder of such shares pursuant to
the provisions of Section 2.3, 2.4 or 2.5, as the case may be, an amount per
share greater than the Termination Price (the "Greater Consideration") if, at or
prior to the time such consideration is otherwise payable (the "Greater
Consideration Closing"), the Corporation would be or would have been entitled
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to exercise its right to purchase such shares of Common Stock pursuant to
Section 3.2 hereof. The Corporation may request the Stockholder, if, at such
time, the Stockholder has been Terminated, to provide the Corporation with
evidence, reasonably satisfactory to the Corporation, of the identity of the
employers of the Stockholder at any time during the period set forth in clause
(b) of Section 3.2 hereof (or since the date hereof until the date of the
request, if a shorter period), in which event, notwithstanding the provisions of
Section 2.3, 2.4 or 2.5, as the case may be, the Stockholder shall not be
entitled to receive the Greater Consideration unless and until the Stockholder
first provides such evidence to the reasonable satisfaction of the Corporation.
If the Stockholder fails to provide such evidence to the reasonable satisfaction
of the Corporation prior to the date of the Greater Consideration Closing, or if
the Corporation could have exercised its right to purchase by reason of Section
3.2 hereof, the Corporation on behalf of the Stockholder shall be entitled to
receive the entire purchase price payable in respect of the Stockholder's shares
of Common Stock and (i) shall remit to the Stockholder only an amount equal to
(x) the Termination Price multiplied by (y) the number of shares of Common Stock
sold by the Stockholder, and (ii) shall remit the balance of such purchase price
to the other stockholders of the Corporation participating in the transaction
referred to in Section 2.3, 2.4 or 2.5 hereof, as the case may be, pro rata in
accordance with their respective participation in such transaction.
4. Stock Certificate Legend and Investment
Representations; Other Representations.
4.1. All certificates representing shares of Common Stock acquired
hereunder or hereafter by the Stockholder (unless registered under the
Securities Act of 1933, as amended (the "Act")) shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
securities regulatory authority of any state, and may not be sold,
transferred, assigned, exchanged, pledged, encumbered or otherwise
disposed of except in accordance with applicable law and the
provisions of a Stockholder's Agreement with the Corporation, a copy
of which is available for inspection at the offices of the
Corporation."
4.2. The Stockholder represents and warrants that: (a) the Stockholder
understands that (i) the offer and sale of shares of Common Stock in accordance
with this Agreement have not been and will not be registered under the Act, and
it is the intention of the parties hereto that the offer and sale of the
securities be exempt from registration under the Act and the rules promulgated
thereunder by the Securities and Exchange Commission; and (ii) such shares
cannot be sold, transferred, assigned, exchanged,
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pledged, encumbered or otherwise disposed of unless they are registered under
the Act or an exemption from registration is available; (b) the Stockholder is
acquiring the shares of Common Stock to be acquired hereunder for investment for
the Stockholder's own account and not with a view to the distribution thereof;
(c) the Stockholder will not, directly or indirectly, sell, transfer, assign,
exchange, pledge, encumber or otherwise dispose of any shares of Common Stock
acquired hereunder except in accordance with this Agreement; (d) the Stockholder
has, or the Stockholder together with the Stockholder's advisors, if any, have,
such knowledge and experience in financial and business matters that the
Stockholder is, or the Stockholder together with the Stockholder's advisors, if
any, are, and will be capable of evaluating the merits and risks relating to the
Stockholder's purchase of shares of Common Stock under this Agreement; (e) the
Stockholder has been given the opportunity to obtain information and documents
relating to the Corporation and to ask questions of and receive answers from
representatives of the Corporation concerning the Corporation and the
Stockholder's investment in the Common Stock; (f) the Stockholder is able to
bear the economic risk of a total loss of the Stockholder's investment in the
Corporation; and (g) the Stockholder has adequate means of providing for the
Stockholder's current needs and foreseeable personal contingencies and has no
need for the Stockholder's investment in the Common Stock to be liquid.
5. Miscellaneous.
5.1. Rules of Construction.
(a) In this Agreement, unless the context otherwise requires,
words in the singular number or in the plural number shall each include the
singular number and the plural number, words of the masculine gender shall
include the feminine and the neuter, and, when the sense so indicates, words of
the neuter gender may refer to any gender.
(b) The term "affiliate" shall mean any person directly or
indirectly controlling, controlled by, or under common control with the person
of which it is an affiliate.
(c) The term "person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
(d) There shall be included within the term "Corporation" any
successor to Gulfstream Aerospace Corporation by merger, consolidation,
acquisition of substantially all the assets thereof, or otherwise.
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(e) There shall be included within the term "Common Stock" any
Common Stock now or hereafter authorized to be issued, and any and all
securities of any kind whatsoever of the Corporation which may be issued after
the date hereof in respect of, or in exchange for, shares of Common Stock
pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Corporation or otherwise.
(f) The term "FL Partnerships" shall mean individually and
collectively Gulfstream Partners, Gulfstream Partners II, L.P. and Forstmann
Little & Co. Subordinated Debt and Equity Management Buyout Partnership-IV,
each a New York limited partnership.
5.2. Distributions. In the event of any dividend, distribution or
exchange paid or made in respect of the Common Stock consisting of securities
(the "Affiliate Securities") of any affiliate of the Corporation (the
"Affiliate"), (i) the restrictions and rights with respect to the Common Stock
that are contained in Article 2 shall be applicable to the Affiliate Securities
without further action of the parties (with the references to Common Stock being
deemed references to the Affiliate Securities and the references to the
Corporation being deemed references to the Affiliate), and (ii) as a condition
precedent to the receipt of the Affiliate Securities by the Stockholder, the
Stockholder shall enter into a stockholder's agreement containing substantially
equivalent terms with respect to the Affiliate Securities (but reflecting the
economics of the dividend, distribution or exchange and the capitalization of
the Affiliate) as are contained in Section 2.2 and Article 3 hereof. The Board
of Directors of the Corporation, in good faith, shall determine such economics
and its determination shall be final and binding on the holders of the Common
Stock.
5.3. Further Assurances. Each party hereto shall do and perform or cause
to be done and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments and documents as any
other party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5.4. Governing Law. This Agreement and the rights and obligations of the
parties hereto shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York, without giving effect to the principles
of conflicts of law thereof.
5.5. Specific Performance. The parties hereto acknowledge that there
will be no adequate remedy at law for a violation of any of the provisions of
this Agreement and that, in addition to any other remedies which may be
available, all of the provisions of this Agreement shall be specifically
enforceable in accordance with their respective terms.
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5.6. Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction. If any provision of this Agreement is held unlawful or
unenforceable in any respect, such provision shall be revised or applied in a
manner that renders it lawful and enforceable to the fullest extent possible.
5.7. Notice. All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed to have been
given when received by the party to whom such notice is to be given at its
address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(a) If to the Corporation, to:
Gulfstream Aerospace Corporation
000 Xxxxxxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Ms. Xxxxx Xxxxx
with copies to:
Forstmann Little & Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
(b) If to the Stockholder or Legal Representative, to such
person at the address as reflected in the stock records of
the Corporation.
5.8. Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns. In addition, each of the FL
Partnerships shall be a third party beneficiary of this Agreement and shall be
entitled to enforce this Agreement.
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5.9. Amendment and Modification. This Agreement may be amended, modified
or supplemented only by written agreement of the party against whom enforcement
of such amendment, modification or supplement is sought.
5.10. Heading; Execution in Counterparts. The headings and captions
contained herein are for convenience only and shall not control or affect the
meaning or construction of any provision hereof. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
and which together shall constitute one and the same instrument.
5.11. Entire Agreement. This Agreement, the Plan and, if any part of the
Option continues to be outstanding, the Option Agreement constitute the entire
agreement, and supersede all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof
and thereof.
5.12. Withholding. The Corporation shall have the right to deduct from
any amounts payable under this Agreement any taxes or other amounts required by
applicable law to be withheld. The Stockholder agrees to indemnify the
Corporation against any federal, state and local withholding taxes for which the
Corporation may be liable in connection with the Stockholder's acquisition,
ownership or disposition of Common Stock.
5.13. No Right to Continued Employment. This Agreement shall not confer
upon the Stockholder any right with respect to continuance of employment by the
Corporation or any affiliate thereof, nor shall it interfere in any way with the
right of the Corporation or any affiliate thereof to terminate the Stockholder's
employment at any time.
5.14. Possession of Certificates; Power of Attorney.
(a) In order to provide for the safekeeping of the certificates
representing the shares of Common Stock being purchased by the Stockholder and
to facilitate the enforcement of the terms and conditions of this Agreement, (i)
the Corporation shall retain physical possession of all certificates
representing shares of Common Stock subject hereto and (ii) concurrently with
the Stockholder's execution and delivery to the Corporation of this Agreement,
the Stockholder shall deliver to the Corporation an undated stock power, duly
executed in blank, for each such certificate.
(b) The Stockholder hereby irrevocably appoints the FL
Partnerships, and each of them (individually and collectively, the
"Representative"), the Stockholder's true
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and lawful agent and attorney-in-fact, with full powers of substitution, to act
in the Stockholder's name, place and stead, to do or refrain from doing all such
acts and things, and to execute and deliver all such documents, as the
Representative shall deem necessary or appropriate in connection with a sale to
the Corporation following a Termination or pursuant to Section 2.3, 2.4, 2.5 or
3.2 hereof, including, without in any way limiting the generality of the
foregoing, in the case of a sale pursuant to Section 2.3, 2.4 or 2.5 to receive
on behalf of the Stockholder any payments made in respect of the sale of his
shares of Common Stock, to hold back from any such payments any amount that the
Representative deems necessary to reserve against the Stockholder's share of any
Expenses of Sale and pay any Expenses of Sale, and in the case of a sale
pursuant to Section 2.3 or 2.5 hereof, to execute and deliver on behalf of the
Stockholder a purchase and sale agreement and any other agreements and documents
that the Representative deems necessary or desirable in connection with any such
sale, and in the case of a public offering, to execute and deliver on behalf of
the Stockholder an underwriting agreement, a "holdback" agreement, a custody
agreement and any other agreements and documents that the Representative deems
necessary or desirable in connection with any such public offering. The
Stockholder hereby ratifies and confirms all that the Representative shall do or
cause to be done by virtue of its appointment as the Stockholder's agent and
attorney-in-fact. In acting for the Stockholder pursuant to the appointment set
forth in this Section 5.14(b), the Representative shall not be responsible to
the Stockholder for any loss or damage the Stockholder may suffer by reason of
the performance by the Representative of its duties under this Agreement, except
for loss or damage arising from willful violation of law or gross negligence in
the performance of its duties hereunder. The appointment of the Representative
shall be deemed coupled with an interest and as such shall be irrevocable and
shall survive the death, incompetency or insanity of the Stockholder, and any
person dealing with the Representative may conclusively and absolutely rely,
without inquiry, upon any act of the Representative as the act of the
Stockholder in all matters referred to in this Section 5.14(b).
5.15. Consent to Jurisdiction. The Stockholder hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States of America, in each case
located in the County of New York, for any actions, suits or proceedings
("Litigation") arising out of or relating to this Agreement and the transactions
contemplated hereby (and the Stockholder agrees not to commence any Litigation
except in such courts), and further agrees that service of process, summons,
notice of document by United States registered mail to the Stockholder in
accordance with Section 5.7 hereof shall be effective service of process for any
Litigation brought against the Stockholder in any such court. The Stockholder
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any Litigation in the courts of the State of New York or of the United
States of America, in each case located in the County of New York, and hereby
further irrevocably and
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unconditionally waives and agrees not to plead or claim in any such court that
any Litigation brought in any such court has been brought in an inconvenient
forum.
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto, all as of the date first above written.
___________________________________
Stockholder
GULFSTREAM AEROSPACE CORPORATION
By:_______________________________
Title:
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The undersigned hereby agree to be bound by the provisions of Sections 2.3 and
2.4 of the foregoing Stockholder's Agreement.
GULFSTREAM PARTNERS
By FLC XXI Partnership, as General Partner
By:______________________________________
, General Partner
GULFSTREAM PARTNERS II, L.P.
By FLC XXIV Partnership, as General Partner
By:______________________________________
, General Partner
FORSTMANN LITTLE & CO. SUBORDINATED
DEBT AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP - IV
By FLC Partnership, L.P., as General Partner
By:______________________________________
, General Partner
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(IF THE STOCKHOLDER RESIDES IN A COMMUNITY PROPERTY STATE)
The undersigned acknowledges that the undersigned has read the
foregoing Agreement, including the schedule thereto, between Gulfstream
Aerospace Corporation and the undersigned's spouse, the Stock Option Plan and
the Stock Option Agreement, understands that such agreement, plan and option
agreement provide for the undersigned's spouse to purchase shares of Common
Stock, which shares are subject to certain restrictions reflected in such
agreement, plan and option agreement, and agrees to be bound by the foregoing
agreement, plan and option agreement.
________________________________
Stockholder's Spouse
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Schedule I
Number Of Shares In Cumulative Number Of
Respect Of Which Option Shares Subject To The
Is Being Exercised On Stockholder's Agreement
Date The Date Indicated On The Date Indicated
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