EXECUTIVE RESTRICTION AGREEMENT, dated as of July 19, 1996, by and
among RECOVERY ENGINEERING, INC., a Minnesota corporation (the "Company"), and
GS CAPITAL PARTNERS II, L.P., a Delaware limited partnership, GS CAPITAL
PARTNERS II OFFSHORE, L.P., a Cayman Islands limited partnership, XXXXXXX, XXXXX
& CO. XXXXXXXXXXX XxxX, XXXXX XXXXXX XXXX 0000, L.P., a Delaware limited
partnership, and BRIDGE STREET FUND 1996, L.P., a Delaware limited partnership
(the foregoing entities, other than the Company, being referred to herein as the
"GSCP Parties"), and XXXXX X. XXXXXXXX (the "Executive").
WHEREAS, as of the date hereof, the Company and the GSCP Parties are
entering into a Securities Purchase Agreement (the "Securities Purchase
Agreement") pursuant to which the Company is issuing to the GSCP Parties, and
the GSCP Parties are purchasing from the Company, 5% Convertible Notes due 2003
(the "Notes"), in the aggregate principal amount of $15,000,000, which Notes are
initially convertible into 1,000,000 shares of Common Stock, par value $.01 per
share, of the Company ("Common Stock");
WHEREAS, as of the date hereof, the Executive is the President and
Chief Executive Officer of, and holds Common Stock and Capital Stock Equivalents
(as defined below) of, the Company; and
WHEREAS, as an inducement to the GSCP Parties to enter into the
transactions contemplated by the Securities Purchase Agreement, the Company and
the Executive have agreed to enter into this Agreement to establish various
rights and obligations between the parties hereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, the parties hereto agree as follows:
Section 1. Definitions.
"Applicable Tag-Along Percentage" shall mean the quotient obtained
(expressed as a decimal) by dividing (A) the Proposed Number (as defined in
Section 3(b)) by (B) the number of shares of Executive Stock (assuming that all
Executive Stock which are Common Stock Equivalents have been converted,
exchanged or exercised for or into shares of Common Stock) held by all Executive
Holders as of the date of the applicable Sale Notice.
"Average Tag-Along Price Per Share" shall mean, with respect to any
Tag-Along Sale (as defined in Section 3(b)), an amount equal to the quotient
obtained by dividing (A) the sum of (x) the aggregate purchase price offered to
be paid by the Tag-Along Transferee (as defined in Section 3(b)) in such
Tag-Along Sale in respect of all of the Executive Stock proposed to be purchased
by such Transferee, plus (y) the aggregate amount payable or deemed payable upon
conversion, exchange or exercise of all units of Executive Stock which are
Common Stock Equivalents and which are proposed to be purchased in such
Participation Sale by such Tag-Along Transferee, by (B) the number of shares of
Executive Stock (assuming that all Executive Stock which are Common Stock
Equivalents have been converted, exercised or exchanged for or into shares of
Common Stock) proposed to be purchased by such Tag-Along Transferee in such
Tag-Along Sale.
"Cause" shall mean termination of the employment of the Executive by
the Company as a result of (i) the Executive's material breach of this
Agreement, (ii) conviction of the Executive for (x) any crime constituting a
felony in the jurisdiction in which committed or (y) any other criminal act
against the Company or any of its subsidiaries involving dishonesty or willful
misconduct (whether or not a felony), (iii) substance abuse by the Executive,
(iv) the failure or refusal of the Executive to follow one or more lawful and
proper directives of the Board of Directors of the Company, which failure or
refusal continues for twenty (20) days after written notice thereof from any
member of the Board of Directors to the Executive or (iv) willful malfeasance or
gross misconduct by the Executive in the performance of his duties as an officer
of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock Equivalents" shall mean any rights, options, or warrants
to purchase any shares of Common Stock of the Company and any other securities
exercisable or exchangeable for or convertible into shares of Common Stock of
the Company.
"Executive Holder" shall mean the Executive and each Permitted Family
Transferee holding any Executive Stock.
"Executive Stock" shall mean any shares of Common Stock and Common
Stock Equivalents of the Company (including any shares of Common Stock of the
Company issued upon the exercise, exchange or conversion of Common Stock
Equivalents) held by the Executive at any time on or after the date hereof.
"Excise Tax" shall mean any excise tax imposed under Section 4999 of
the Code.
"Good Reason" shall mean termination by the Executive of his employment
with the Company as a result of (a) a substantial reduction by the Company in
the rate of the Executive's annual base salary below the base salary received by
the Executive during the twelve month period prior to the date of such
termination, (b) the Company's reassignment of the Executive to a position of
substantially lesser rank, status or relative authority, or (c) the Company's
requiring (without the consent of the Executive) the Executive to be based at a
place outside a 30-mile radius from his place of employment as of the date
hereof except for required travel on the Company's business to the extent
substantially consistent with the Executive's present business travel
obligations.
"Permitted Family Transferee" shall mean (a) any spouse, parent,
sibling, child, stepchild or grandchild of the Executive or (b) any trust,
charitable foundation or similar entity of which there are no principal
beneficiaries other than the Executive or any person listed in clause (a)
hereof.
"Person" means a corporation, an association, a partnership, a limited
liability company, an organization, a business, an individual, a government or
political subdivision thereof or a governmental agency.
"Securities" means (i) the Common Stock issued or issuable upon
conversion of the Notes (or any securities into which the Notes are exchanged
pursuant to the Registration Rights Agreement, dated as of the date hereof,
between the Company and the GSCP Parties) and (ii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For purposes of
the Agreement, any Person that holds Notes shall be deemed to be the holder of
the number of Securities obtainable upon conversion of such Notes. As to any
particular shares of Common Stock which are "Securities", such shares shall
cease to be "Securities" when they have been (a) effectively registered under
the Securities Act and disposed of in accordance with the registration statement
covering them or (b) sold pursuant to Rule 144 under the Securities Act.
"Sell", as to any Executive Stock, shall mean to sell, or in any other
way directly or indirectly transfer, assign, distribute, encumber or otherwise
dispose of, either voluntarily or involuntarily, and either with or without
consideration; provided, however, that the exercise or conversion by the
Executive of any Common Stock Equivalent solely for shares of Common Stock of
the Company shall not be deemed to be a "Sale" of such Common Stock Equivalent.
The terms "Sale" and "Sold" shall have meaning correlative to the foregoing.
"Trade Secrets" means any confidential and proprietary information of
the Company or any of its subsidiaries or relating to the Company's or any of
its subsidiaries' business or affairs, including, without limitation, technical
information, product information and formulae, processes, business and marketing
plans, strategies, customer information, other information concerning the
Company's or any of its subsidiaries' products, development, financing,
expansion plans, business policies and practices and all other forms of
information considered by the Company or any of its subsidiaries to be
proprietary and confidential and in the nature of trade secrets; provided,
however, that "Trade Secrets" shall not include any such information which (a)
was known to the Executive prior to his employment by the Company or (b) was or
becomes generally available to the public other than as a result of disclosure
by the Executive in violation of his Agreement.
Section 2. Limitations on Sales of Executive Stock. For a period of two
(2) years from the date hereof, no Executive Holder may Sell any Executive
Stock; provided, however, that the foregoing restriction shall not apply to any
Sale of Executive Stock the proceeds of which are to be used solely for (x) the
payment of taxes arising as a result of the exercise by the Executive of options
issued to him pursuant to any stock option plan approved by the Board of
Directors of the Company and (y) for the payment of the exercise price of any
such options.
Section 3. Tag-Along Rights. (a) No Executive Holder (a "Selling
Executive Holder") may Sell any Executive Stock, such that after giving effect
to such Sale (whether as a result of such Sale or otherwise) an amount of
Executive Stock in excess of 25% of the Executive Stock held by the Executive as
of the date hereof will have been Sold, in the aggregate, after the date hereof
by all Executive Holders to Persons other than Permitted Family Transferees as
permitted by Section 4 hereof (such a Sale being referred to herein as a
"Tag-Along Sale"), except in accordance with the following procedures:
(b) The Selling Executive Holder shall first deliver to each
holder of Securities a written notice (a "Sale Notice") which shall (x) set
forth (a) the terms of the proposed Tag-Along Sale, including the name of the
proposed transferee (the "Tag-Along Transferee"), the number of shares of
Executive Stock (assuming that all Executive Stock which are Common Stock
Equivalents have been converted, exchanged or exercised into or for shares of
Common Stock) proposed to be Sold pursuant to such Tag-Along Sale by the Selling
Executive Holder (the "Proposed Number"), the Average Tag-Along Price Per Share
proposed to be paid therefor, the payment terms and the type of Sale to be
effected, (b) the number of shares of Executive Stock (assuming that all
Executive Stock which are Common Stock Equivalents have been converted,
exchanged or exercised into or for shares of Common Stock) held as of the date
of such Sale Notice by all Executive Holders and (c) the number of shares of
Common Stock held as of the date of such Sale Notice by all holders of
Securities (assuming that all Notes have been fully converted into shares of
Common Stock) and (y) contain an offer (a "Tag-Along Offer") by the Tag-Along
Transferee to each holder of Securities, which shall be irrevocable for twenty
(20) days, to purchase the Applicable Tag-Along Percentage of such holder's
Securities (regardless of whether such Securities are held in the form of Notes
or Common Stock) at a price per share (with each Note deemed to be fully
converted for purposes of determining the price thereof) equal to the Average
Tag-Along Price Per Share. Each holder of Securities desiring to accept a
Tag-Along Offer (a "Tag-Along Participant") shall, within twenty (20) days after
the date upon which such Sale Notice is received (the "Acceptance Period"),
provide written notice to the Tag-Along Transferee setting forth the number of
shares of Common Stock or Notes the Tag-Along Participant elects to Sell to the
Tag-Along Offer.
(c) All Sales of Executive Stock and Securities to the
Tag-Along Transferee shall be consummated contemporaneously on the later of (i)
a mutually satisfactory business day as soon as practicable, but in no event
more than 30 days after the expiration of the Acceptance Period, or (ii) the
fifth day following the expiration or termination of all waiting periods under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable
to such Sales, or at such other time and/or place as the parties to such Sales
may agree. The delivery of certificates or other instruments evidencing the
Securities being Sold duly endorsed for transfer shall be made on such date
against payment of the purchase price therefor.
Section 4. Transfers to Permitted Family Transferees; Voting Agreement.
(a) Any Executive Holder may Sell Executive Stock to any Permitted Family
Transferee notwithstanding Section 2 and without complying with Section 3;
provided, however, that (a) such Selling Executive Holder may receive no
consideration in connection with such Sale and (b) as a condition to such Sale,
such Permitted Family Transferee shall execute and deliver to the Company an
agreement pursuant to which such Permitted Family Transferee agrees to be bound
by the terms of Sections 2, 3 and 4 of his Agreement.
(b) Each Executive Holder hereby agrees that, (x) at each
meeting of the stockholders of the Company, such Executive Holder will vote each
share of Executive Stock held by such Executive Holder and (y) take all other
necessary or desirable action within such Executive Holder's control (including,
without limitation, attending all meetings of the Stockholders of the Company in
person or by proxy and executing all written consents in lieu of meetings), to
cause each Securities Designee (as defined in the Securities Purchase Agreement)
to be elected to, and the Initial Securities Designee (as defined in the
Securities Purchase Agreement) and each Securities Designee to be maintained as
a member of, the Board of Directors of the Company.
Section 5. Prohibited and Competitive Activities. The Executive and the
Company recognize that due to the nature of the Executive's position with the
Company and due to the relationship of the Executive to the Company, both prior
and subsequent to the date of this Agreement, the Executive has had and will
have access to, has had and will acquire, and has assisted and may continue to
assist in, developing confidential and proprietary information relating to the
business and operations of the Company and its subsidiaries, including, without
limitation, Trade Secrets. The Executive acknowledges that such information has
been and will be of central importance to the business of the Company and its
subsidiaries and that disclosure of it to, or its use by, others (including,
without limitation, the Executive (other than with respect to the Company's
business and affairs)) could cause substantial loss to the Company. The
Executive and the Company also recognize that an important part of the
Executive's duties will be to develop goodwill for the Company and its
subsidiaries through the Executive's personal contact with customers, suppliers,
employees, and others having business relationships with the Company, and that
there is a danger that this goodwill, a proprietary asset of the Company, may
follow the Executive if and when the Executive's relationship with the Company
is terminated. The Executive accordingly agrees that, in the event that (x) his
employment with the Company is terminated by the Company for Cause, or (y) the
Executive terminates his employment with the Company for any reason other than
for Good Reason, then, for three years after the date of any such termination
(the "Date of Termination"), the Executive will not (a) become, directly or
indirectly, an employee, consultant, owner (except for passive investments of
not more than two percent (2%) of the outstanding shares of, or any other equity
interest in, any Person listed or traded on any national securities exchange or
in an over-the-counter securities investment), officer, agent or director of, or
otherwise participate in the management operation, control of profits of, any
Person who or which directly or indirectly competes with any business of the
Company which accounts (either before or after the Date of Termination) for five
percent (5%) or more of the Company's and its subsidiaries gross sales, revenues
or earnings before taxes on a consolidated basis, (b) directly or indirectly,
whether for the Executive's own account or for the account of any other Person,
interfere with the relationship of the Company or any of its subsidiaries with,
or solicit, divert, or endeavor to employ or entice away from the Company or any
of its subsidiaries, any Person who or which is or was an employee, customer or
supplier of, or maintained a business relationship with, the Company or any of
its subsidiaries (whether before or after the Date of Termination), (c) directly
or indirectly, disclose or furnish to any other Person or use for the
Executive's own account or for the account of any other Person, any Trade
Secrets, and the Executive shall retain all such Trade Secrets in trust for the
benefit of the Company, its subsidiaries and their successor and assigns, or (d)
publish or make any statement critical of the Company, any of its subsidiaries,
or any of its shareholders or in any other way adversely affect or otherwise
malign the business reputation of any of the foregoing Persons.
Section 6. Severance Payment. (a) The Company agrees that, in the event
that (x) the Executive's employment with the Company is terminated by the
Company other than for Cause, or (y) the Executive terminates his employment
with the Company for Good Reason, then, the Company shall pay to the Executive,
within the ten (10) days after the date of such termination (the date of such
termination being referred to herein as the "Severance Payment Termination
Date"), a lump sum severance payment (the "Severance Payment"), in cash, equal
to the sum of three times the amount of the base salary and all cash bonuses
received by the Executive during the twelve month period immediately prior to
such termination.
(b) Notwithstanding subsection (a) of this Section 6 in the
event that any payments or benefits received or to be received by the Executive
in connection with termination of his employment with the Company (whether
pursuant to the terms of this Agreement or pursuant to any other plan,
arrangement or agreement with the Company) (all such payments and benefits,
including the Severance Agreement, being referred to herein collectively, as the
"Total Payments") would in the opinion of the Company be subject (in whole or
part) to the Excise Tax, then the Severance Payment, if any, shall be reduced by
the Company to the extent necessary so that in the opinion of the Company no
portion of the Total Payments is subject to the Excise Tax. The Company shall
reduce or eliminate the Total Payments by first reducing or eliminating the
portion of the Total Payments which are not payable in cash and then by reducing
or eliminating cash payments, in each case in reverse order beginning with
payments or benefits which are to be paid farthest in time from the Severance
Payment Termination Date.
Section 7. Representations and Warranties. (a) Each party hereto
represents and warrants to the other parties hereto as follows:
(i) It has full power and authority to execute,
deliver and perform its obligations under this Agreement.
(ii) This Agreement has been duly and validly
authorized, executed and delivered by it, and constitutes a
valid and binding obligation of it, enforceable against it in
accordance with its terms except to the extent that
enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally.
(iii) The execution, delivery and performance of this
Agreement by it does not (x) violate, conflict with, or
constitute a breach of or default under its organizational
documents, if any, or any material agreement to which it is a
party or by which it is bound or (y) violate any law,
regulation, order, writ, judgment, injunction or decree
applicable to it.
(iv) No consent or approval of, or filing with, any
governmental or regulatory body is required to be obtained or
made by it in connection with the transactions contemplated
hereby.
(v) It is not a party to any agreement which is
inconsistent with the rights of any party hereunder or
otherwise conflicts with the provisions hereof.
(b) The Executive represents and warrants to the GSCP Parties
that he is not a party to any contract or agreement (other than stock option
agreements entered into pursuant to stock option plans in effect as of the date
hereof), written or oral, (i) with respect to the securities of the Company
(including, without limitation, any voting agreement, voting trust,
stockholder's agreement, registration rights agreement, etc.) or (ii) otherwise
with or relating to the Company.
Section 8. No Inconsistent Agreements; No Employment Agreement. Neither
the Company nor the Executive shall take any action or enter into any agreement
which is inconsistent with the rights of any party hereunder or otherwise
conflicts with the provisions hereof. Nothing contained herein shall be
construed (x) as requiring the Company to continue to employ the Executive in
any capacity after the date hereof or (y) as requiring the Executive to remain
in the employ of the Company in any capacity after the date hereof.
Section 9. Further Assurances. At any time or from time to time after
the date hereof, the parties agree to cooperate with each other, and at the
request of any other party, to execute and deliver any further instruments or
documents and to take all such further action as the other party may reasonably
request in order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
Section 10. Legends. The Company and the Executive shall take all such
actions as necessary (including issuing new certificates) to cause each
certificate representing shares of Executive Stock to promptly, after the date
hereof, bear a legend containing the following words:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH IN
THE EXECUTIVE RESTRICTION AGREEMENT
DATED AS OF JULY 19, 1996 BY AND AMONG
RECOVERY ENGINEERING, INC., XXXXX X.
XXXXXXXX AND THE OTHER PARTIES THERETO,
A COPY OF WHICH IS ON FILE IN THE OFFICE
OF THE CORPORATION."
The requirement that the above legend regarding this Agreement
be placed upon certificates evidencing any shares of Executive Stock shall cease
and terminate with respect to shares sold in accordance with the terms of this
Agreement upon the consummation of such Sale and, with respect to all other
shares of Executive Stock, upon the termination of this Agreement. Upon the
occurrence of any event requiring the removal of a legend hereunder, the
Company, upon the surrender of certificates containing such legend, shall, at
its own expense, deliver to the holder of any such shares of Executive Stock as
to which the requirement for such legend shall have terminated, one or more new
certificates evidencing such shares not bearing such legend.
Section 11. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid, but
if any provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
Section 12. Remedies. The Executive agrees that the terms and
provisions of Sections 2, 3, 4, 5, 7 and 8 are for the benefit of the Company
and each holder of Securities and that any breach of any of the terms and
provisions thereof would result in irreparable injury and damage to the Company
and each holder of Securities for which the Company and each holder of
Securities would have no adequate remedy at law. The Executive therefore agrees
that in the event of said breach or any threat of breach, the Company and each
holder of Securities shall be entitled to seek an immediate injunction and
restraining order to prevent such breach and/or threatened breach and/or
continued breach by the Executive and/or any and all persons and/or entities
acting for and/or with the Executive, without having to prove damages. The terms
of this Section 12 shall not prevent the Company or any holder of Securities
from pursuing any other available remedies to which the Company or such holder
of Securities may be entitled at law or in equity for any breach or threatened
breach hereof, including but not limited to the recovery of damages from the
Executive.
Section 13. Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors, assigns, heirs and personal representatives. In addition, and
whether or not an express assignment has been made, each of the provisions of
this Agreement pursuant to which the holders of Securities have rights are for
the benefit of, and are enforceable by, any registered holder of Securities.
Section 14. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Company, to:
Recovery Engineering, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Winthrop & Wienstine, P.A.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) if to the GSCP Parties, to:
GS Capital Partners II, L.P.
c/o Goldman Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(iii) If to the Executive, to:
Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
Section 15. Amendments. The terms and provisions of this Agreement may
only be modified or amended, or any of the provisions hereof waived, temporarily
or permanently, pursuant to the written consent of the Company, the Executive
and the holders of a majority of the Securities (with all Notes being deemed to
be fully converted for purposes of this provision).
Section 16. Headings. The headings of the Sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
Section 17. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the State of New
York, without regard to the conflicts of laws principles thereof. Each of the
parties hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and the United
States of America located in the County of New York for any action or proceeding
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any action or proceeding relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in the Section 14 hereof shall be effective service of process for any action or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America located in the County of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. The Company hereby waives any right it may
have to a trial by jury in respect of any action, proceeding or litigation
directly or indirectly arising out of, under or in connection with, this
Agreement.
Section 18. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party to such action or proceeding
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
Section 19. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all prior and contemporaneous agreements and understandings
with respect thereto.
Section 20. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
Section 21. Termination. This Agreement shall terminate at such time as
the number of Securities outstanding is equal to less than 25% of the Securities
issued pursuant to the Securities Purchase Agreement as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
RECOVERY ENGINEERING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President & CEO
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors, II (Cayman), L.P., its
general partner
By: GS Advisors II, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXXXXX, XXXXX & CO. VERWALTUNGS GmbH
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
and
By: /s/ X. X. Xxxxxxxxx
-------------------------------------------
Name: X. X. Xxxxxxxxx
Title: Registered Agent
STONE STREET FUND 1996, L.P.
By: Stone Street Empire Corp., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Empire Corp., its managing
general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------------
XXXXX X. XXXXXXXX
