Exh - 10.23
PURCHASE AND STOCKHOLDER AGREEMENT
This Purchase and Stockholder Agreement, made this September 20, 1995,
between Uniquip Corporation, a Delaware corporation (the "Corporation") and
Xxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H T H A T:
WHEREAS, the Corporation is authorized to issue One Million Five Hundred
Thousand (1,500,000) shares of Common Stock, par value One Cent ($.01) per
share (the "Common Stock");
WHEREAS, the Executive is an executive employee of TRAK International,
Inc., a Subsidiary of the Corporation;
WHEREAS, the Executive has offered to purchase from the Corporation
seven thousand five hundred shares (7,500) shares of the Common Stock,
representing Seventy-Five Hundredths Percent (.75%) of the then issued and
outstanding shares of the Common Stock on a fully diluted basis, at an
aggregate price of Forty-Seven Thousand Six Hundred Forty-Seven Dollars
($47,647.00) (the "Purchase Price"), and the Corporation has agreed to accept
such offer to purchase such shares of the Common Stock, subject to the right
of the Corporation to purchase all of the shares of the Common Stock now
owned or hereafter acquired by the Executive in certain circumstances; and
WHEREAS, the Corporation and the Executive desire to set forth their
understandings and agreements with respect to restrictions on certain
transfers of shares of the Common Stock now owned or hereafter acquired by
the Executive, the right of the Corporation to purchase all of the shares of
the Common Stock now owned or hereafter acquired by the Executive in certain
circumstances and certain other matters; including provisions with respect to
the Executive's post-termination employment and/or interest in competing
enterprises; and
WHEREAS, the Corporation and the Executive acknowledge and agree that
the restrictions on certain transfers of shares of the Common Stock now owned
or hereafter acquired by the Executive further the Corporation's interest by
having shares of the Common Stock owned by full time employees of the
Corporation and its Subsidiaries, and that other provisions hereof are
consistent with the bonafide interests of the Corporation and of other full
time employees of the Corporation and its Subsidiaries; and
WHEREAS, it is recognized and acknowledged by the Executive that the
success of the Corporation and its Affiliates, including the Majority
Stockholder and other stockholders of the Corporation, is attributable in
major part to the manner by which the Corporation and its Affiliates source
and evaluate acquisition candidates and integrate their acquisitions,
referred to as the "Harbour Group Culture", all of which involve special and
proprietary techniques, procedures and training; and
WHEREAS, in order for the Executive to make a meaningful contribution in
his job, the Executive must learn and practice the intricacies of the
Corporation's and Harbour Group's procedures and know-how, benefit from the
collective Harbour Group experience in implementation of the "Harbour Group
Culture" and work with a small group of executives who have also learned the
intricacies of the "Harbour Group Culture", pursuant to which executives
engaged in acquisitions, finance, and operations work in concert; and
WHEREAS, Harbour Group enjoys a reputation in the business community of
the United States and elsewhere with particular but not exclusive reference
to its reputation among institutional investors, commercial banking
institutions, investment bankers, business brokers and sellers and buyers of
business enterprises; and
WHEREAS, the Executive's reputation will be enhanced and his experience
will be enhanced by his relationship with the Corporation and with Harbour
Group; and
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WHEREAS, the Executive acknowledges that special harm and injury will or
may be sustained by the Corporation and the Majority Stockholder and other
stockholders should acts otherwise prohibited herein nonetheless be taken.
NOW THEREFORE, in consideration of the mutual covenants, agreements and
promises hereinafter set forth and of other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS.
a. "Act" shall mean the Securities Act of 1933, as amended.
b. "Affiliate" means any Person now or hereafter controlling,
controlled by, or under common control with another Person. "Affiliate of
the Majority Stockholder" shall not include any full-time employee of the
Corporation or any Subsidiary.
c. "Benefits" shall mean Health and Welfare Plans in accordance
with the current policies of the Corporation or any Subsidiary by which the
Executive is employed.
d. "Benefits Period" shall have the meaning set forth in Paragraph 26.
e. "Bona Fide Employee's Offer" shall have the meaning set forth
in Paragraph 4.
f. "Cause" shall mean (i) the material breach by the Executive of
this Agreement, including without limitation, any breach of Paragraphs 9 and
10; (ii) the Executive's dishonesty in connection with the business of the
Corporation or any Subsidiary which is materially detrimental to the best
interests of the Corporation or any Subsidiary; (iii) the Executive's
conviction of a felony crime; (iv) any material act or omission by the
Executive during his employment with the Corporation or any Subsidiary
involving willful malfeasance or gross negligence in the performance of his
duties to the Corporation or any such Subsidiary; or (v) any other act or
omission by the Executive during his employment in the Corporation or any
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Subsidiary which provides the Corporation with a ground for terminating the
Executive's employment for cause under the employment law of the state in
which the Corporation's principal place of business is located.
g. "Common Stock" shall have the meaning set forth in the first
WHEREAS clause.
h. "Health and Welfare Plans" shall mean employee life, health
and disability insurance plans or other fringe benefit programs, if any,
maintained by the Corporation or any Subsidiary by which the Executive is
employed.
i. "Majority Stockholder" shall have the meaning set forth in
Paragraph 14.
j. "New Issue Securities" shall have the meaning set forth in
Paragraph 16.
k. "Note" means the Promissory Note of the Executive issued to
the Corporation dated the date hereof in an original principal amount which
is the Purchase Price minus seventy-five dollars ($75.00).
l. "100% Purchaser" shall have the meaning set forth in Paragraph
14. m."Ordinary Course of Business" means the conduct of the business and
affairs of the Corporation or its Subsidiaries in the usual and ordinary
course and in a manner which advances the purposes, and is in the best
interest, of the Corporation and its Subsidiaries.
m. ""Ordinary Course of Business'' means the conduct of the
business and affairs of the Corporation or its Subsidiaries in the usual and
ordinary course and in a manner which advances the purposes, and is in the
best interest, of the Corporation and its Subsidiaries.
n. "Permanent Disability" shall have the meaning set forth in
Paragraph 26.
o. "Person" means any individual, corporation, firm, partnership
or other business entity.
p. "Post-Employment Restriction Period" shall have the meaning
set forth in Paragraph 26.
q. "Prime Rate" means the annual rate of interest designated as
the "prime rate" in the listing of "money rates" as published from time to
time in THE WALL STREET JOURNAL, or if such
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publication is discontinued, the rate published as the "prime rate" or "base
rate" from time to time by any similar or successor publication designated by
the Board of Directors of the Corporation.
r. "Proprietary Information" means all secret, confidential or
proprietary knowledge, information or data with respect to the conduct or
details of the business of the Corporation or its Affiliates including,
without limitation, methods of operation, customers and customer lists,
products, proposed products, former products, proposed, pending or completed
acquisitions of any company, division, product line or other business unit,
prices, fees, costs, plans, designs, technology, know-how, software,
marketing methods, policies, plans, personnel, suppliers, competitors,
markets or other specialized information or proprietary matters of the
Corporation or any of its Affiliates.
s. "Publicly Traded," with respect to the Common Stock, means
listed for trading on any national or regional securities exchange or quoted
on the National Association of Securities Dealers Automated Quotation system
or a successor system.
t. "Purchase Price" shall have the meaning set forth in the third
WHEREAS clause.
u. "Registration Notice" shall have the meaning set forth in
Paragraph 15.
v. "Sale of Control Notice" shall have the meaning set forth in
Paragraph 14.
w. "Securities Laws" means, collectively, the Act and all other
applicable state securities laws.
x. "Shares" shall have the meaning set forth in Paragraph 2.
y. "Stockholder's Included Shares" shall have the meaning set
forth in Paragraph 14.
z. "Stockholder's Registered Shares" shall have the meaning set
forth in Paragraph 15.
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aa. "Subsidiary" shall mean any corporation or other entity of
which the Corporation directly or indirectly owns beneficially or of record
fifty percent (50%) or more of (i) the outstanding shares of capital stock if
such entity is a corporation or (ii) the outstanding ownership interests if
such entity is not a corporation.
ab. "Written Notice" shall have the meaning set forth in
Paragraph 4.
2. SCOPE OF AGREEMENT. This Agreement shall apply to all transfers of
shares of Common Stock owned by the Executive or any of his transferees
(direct or indirect, including without limitation the Executive's personal or
legal representatives, successors and assigns), whether such shares are now
owned or hereafter acquired (collectively the "Shares"), and whether such
transfers are voluntary, involuntary or by operation of law, resulting from
death or otherwise.
3. RESTRICTIONS ON THE TRANSFER OF SHARES.
a. Except as otherwise provided in Paragraphs 3b, 3c, 3d, 4, 11,
12, 14 and 15 of this Agreement, neither the Executive nor any of his
transferees (direct or indirect, including without limitation the Executive's
personal or legal representatives, successors and assigns) shall or may sell,
exchange, deliver, assign, bequeath or give, pledge, mortgage, hypothecate or
otherwise encumber, transfer or permit to be transferred, or otherwise
dispose of, any or all of the Shares, whether voluntarily, involuntarily or
by operation of law (including without limitation the laws of bankruptcy,
intestacy, descent and distribution and succession).
b. In the event of the Executive's death, the Shares may be
transferred to the Executive's personal or legal representatives, estate or
distributees of such estate, and such transfer shall be registered on the
stock transfer books of the Corporation.
c. In the event that shares of the Common Stock shall be Publicly
Traded, the right of the Corporation under Paragraphs 11 and 12 of this
Agreement to purchase the Shares which are then owned by the Executive or any
representative, successor or transferee of the Executive
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shall lapse but all of the other provisions of this Agreement shall continue
in full force and effect. On the fourth anniversary of the date on which
shares of the Common Stock are first Publicly Traded, the restrictions on the
transfer of the Shares contained in Paragraphs 3a, 4, 5 and 7 of this
Agreement shall lapse; provided, however, that in the event of the death of
the Executive prior to the date of such fourth anniversary, all of the Shares
owned by the Executive on the date of his death may be sold without any
restriction imposed by this Agreement.
d. Provided that such action is not objected to by any
underwriter then engaged in discussions with the Corporation regarding public
offerings of the Corporation's securities and the Corporation has reasonably
determined that such action will not adversely affect the market for its
securities, the Corporation shall, upon the request of the Executive at the
following times, permit the Executive to sell or otherwise transfer without
regard to Paragraphs 3a, 4, 5 and 7 of this Agreement a portion of the Shares
not to exceed the whole number of Shares equaling the following percentage of
the number of Shares (adjusted for any intervening conversion, stock split,
stock dividend or the like) held by the Executive on the date on which the
Common Stock is first Publicly Traded:
(i) after the first anniversary of the date on which the
Common Stock is first Publicly Traded, twenty-five percent (25%);
(ii) after the second anniversary of the date on which the
Common Stock is first Publicly Traded, a cumulative fifty percent (50%); and
(iii) after the third anniversary of the date on which the
Common Stock is first Publicly Traded, a cumulative seventy-five percent
(75%).
4. RIGHT OF FIRST REFUSAL WITH RESPECT TO THE SALE OF THE SHARES TO
EMPLOYEES OF THE CORPORATION.
a. In the event that the Executive shall receive a Bona Fide
Employee's Offer (hereinafter defined) to purchase any or all of the Shares
and the Executive desires to accept such Bona Fide Employee's Offer, the
Executive shall promptly send Written Notice (hereinafter
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defined) to the Corporation, offering to sell such Shares to the Corporation
in accordance with subparagraph 4c hereof, at the same price and upon the
same terms and conditions as are contained in the Bona Fide Employee's Offer.
Such offer shall be irrevocable for a period of ninety (90) days from the
receipt of Written Notice by the Corporation. The Written Notice shall
contain a true and complete copy of the Bona Fide Employee's Offer, setting
forth the price and all terms and conditions of such offer, as well as the
name(s), address(es) (both home and office), and business(es) or
occupation(s) of the third party offeror (or offerors). The Written Notice
shall be accompanied by evidence that sufficient funds are available to the
third party offeror (or offerors) to carry out the terms of such offer. Any
Written Notice that does not contain all such requisite information shall not
be considered a "Written Notice" for purposes of this subparagraph 4a.
b. As used in this Agreement, the term "Bona Fide Employee's Offer"
shall mean a legally enforceable offer in writing, made and signed by a
person who is then a full time employee of the Corporation or any Subsidiary
and who is financially capable of carrying out the terms of such Bona Fide
Employee's Offer.
c. Whenever a Bona Fide Employee's Offer to purchase Shares has
been received by the Executive, and Written Notice thereof has been sent to
the Corporation, the following procedure shall be complied with: For a
period of ninety (90) days from its receipt of such Written Notice, the
Corporation shall have the right, in its sole discretion, without obligation,
to purchase all (but no less than all) of the Shares so offered. If the
Corporation elects to purchase all of the Shares so offered, it must send
Written Notice thereof to the Executive within said ninety (90) day period.
If the Corporation does not elect to purchase the Shares so offered within
the prescribed time period, the Executive shall have the right to accept the
Bona Fide Employee's Offer in whole (but not in part) and to sell such
Shares, subject to the provisions and restrictions of this Agreement, but
only in strict accordance with all of the provisions of the Bona Fide
Employee's Offer and only if (i) the sale is fully consummated within one
hundred and twenty (120) days after the mailing of the initial Written Notice
to the Corporation and (ii) the Executive
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has prepaid the Note in accordance with its terms. In the event that such
sale is not fully consummated within one hundred and twenty (120) days after
the mailing of the Written Notice, the provisions of this Paragraph 4 must
again be complied with by the Executive.
5. AGREEMENT BINDING UPON TRANSFEREES. In the event that any Shares
are transferred to any Person, at any time or from time to time, by operation
of law or pursuant to the provisions of Paragraphs 3 or 4 hereof, the
transferee(s) shall agree in writing (for and on behalf of himself or itself,
his or its personal or legal representatives, transferees, successors and
assigns) to be bound by all provisions of this Agreement as a party hereto.
Prior to any such transfer, the transferee shall provide the Corporation with
the transferee's written agreement so to be bound. In the absence of any
such written agreement no such transfer shall be effective for any purpose,
but the failure to obtain such written agreement shall in no way diminish the
applicability of the provisions hereof. Without limiting the generality of
the preceding provisions of this Paragraph 5, in the event that any Shares
are transferred to any full time employee of the Corporation or any
Subsidiary pursuant to the provisions of Paragraph 4, such full time employee
shall agree in writing to be bound by all provisions of this Agreement,
including without limitation the provisions of Paragraph 12, and such
employee shall be deemed thereafter to be the Executive in respect of the
Shares transferred to such employee as if initially named in this Agreement
and shall be subject as such to the provisions of this Agreement, PROVIDED
THAT the price at which the Corporation may purchase the Shares from such
employee pursuant to Paragraph 11 shall be the price at which the Shares were
sold to such employee pursuant to Paragraph 4. Prior to any such transfer,
the transferee shall provide the Corporation with the transferee's written
agreement so to be bound. In the absence of any such written agreement no
such transfer shall be effective for any purpose, but the failure to obtain
such written agreement shall in no way diminish the applicability of the
provisions hereof.
6. STOCK TRANSFER RECORD. The Corporation shall keep a stock transfer
book in which shall be recorded, among other things, the name and address of
each of its stockholders. No transfer of any Shares shall be effective or
valid unless and until recorded in such stock transfer
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book. The Corporation shall not record any transfer of Shares in such stock
transfer book unless the transfer is in strict compliance with all provisions
of this Agreement. The Executive agrees that, in the event he desires to
make a transfer within the provisions hereof, he shall furnish to the
Corporation such evidence of his compliance with this Agreement and that the
proposed transfer may be effected without registration under the Securities
Laws as from time to time may be required by the Board of Directors of, or
counsel for, the Corporation.
7. ENTRY OF LEGENDS UPON STOCK CERTIFICATES. Each certificate
representing Shares shall bear the following legends:
"The encumbering, transfer or other disposition
(including, without limitation, any transfer or
disposition pursuant to the laws of bankruptcy,
intestacy, descent and distribution and succession) of
the shares of common stock evidenced by the within
Certificate is restricted under the terms of a Purchase
and Stockholder Agreement, dated August ___, 1995,
between Uniquip Corporation (the "Corporation") and Xxxx
X. Xxxxxx, a copy of which Agreement is on file at the
principal office of the Corporation. Such shares are
also subject to a voting agreement contained in said
Purchase and Stockholder Agreement. Upon written request
of any stockholder of the Corporation, the Corporation
shall furnish, without charge to any such stockholder, a
copy of said Purchase and Stockholder Agreement."
"The shares represented by this Certificate have not been
registered under the Securities Act of 1933, as amended,
or any state securities law (collectively, the
"Securities Laws") and may not be sold, transferred or
otherwise disposed of unless (i) a registration statement
covering such shares is effective under the Securities
Laws or (ii) the transaction is exempt from registration
under the Securities Laws and, if the Corporation
requests, an opinion satisfactory to the Corporation to
such effect has been rendered by counsel."
8. DELIVERY OF SHARES AND DOCUMENTS. Upon the closing of any purchase
of any Shares pursuant to Paragraph 4 of this Agreement, the Executive shall
deliver to the purchaser the following: the certificate or certificates
representing the Shares being sold, duly endorsed for transfer and bearing
such documentary stamps, if any, as are necessary, and such assignments,
certificates of authority, tax releases, consents to transfer, instruments
and evidences of title of the Executive and of the Executive's compliance
with this Agreement as may be reasonably required by the purchaser or by
counsel for the purchaser.
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9. COVENANT NOT TO DISCLOSE.
a. The Executive covenants and agrees that he will not, during the
period of his employment with the Corporation or at any time thereafter,
except with the express prior written consent of the Chairman and Chief
Executive Officer of Harbour Group Ltd., any successor to Harbour Group Ltd.
or their respective designees, directly or indirectly disclose, communicate
or divulge to any Person, or use for the benefit of any Person, any
Proprietary Information. The restriction contained in the preceding sentence
shall not apply to any Proprietary Information that (i) is a matter of public
knowledge (which shall include knowledge in the industries in which the
Corporation or its Subsidiaries are engaged) on the date of this Agreement,
(ii) becomes a matter of public knowledge (which shall include knowledge in
the industries in which the Corporation or its Subsidiaries are engaged)
after the date of this Agreement from another source which is under no
obligation of confidentiality to the Corporation or its Affiliates or (iii)
that is furnished in the Ordinary Course of Business to Persons which sell,
provide or propose to sell or provide goods or services to the Corporation or
its Subsidiaries or which purchase, obtain or propose to purchase or obtain
goods or services from the Corporation or its Subsidiaries.
b. All data, designs, drawings, blueprints, tracings, sketches,
plans, layouts, specifications, models, programs, cards, tapes, disks,
printouts, writings, manuals, guides, notes and any and all other memoranda,
including without limitation any and all written information which may be or
has been furnished to the Executive or which may be produced, prepared or
designed by the Executive in connection with his employment with the
Corporation shall be, become and remain the exclusive property of the
Corporation. Upon the termination of the Executive's employment with the
Corporation, all originals, copies and reprints in the Executive's
possession, custody, or control shall be promptly surrendered and/or
delivered to the Corporation, and the Executive shall thereafter make no
further use, either directly or indirectly, of any such data, designs,
drawings, blueprints, tracings, sketches, plans, layouts, specifications,
models, programs, cards, tapes, disks, printouts, writings, manuals, guides,
notes or other memoranda or written information.
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10. COVENANTS NOT TO COMPETE.
a. The Executive covenants and agrees that he will not at any time
during his employment with the Corporation and thereafter for the applicable
Post-Employment Restriction Period, except with the express prior written
consent of the Chairman and Chief Executive Officer of Harbour Group Ltd.,
any successor to Harbour Group Ltd. or their respective designees, directly
or indirectly, whether as employee, owner, partner, agent, director, officer,
consultant, shareholder (except as the holder of not more than one percent
(1%) of the outstanding shares of a corporation whose stock is listed on any
national or regional securities exchange or reported by the National
Association of Securities Dealers Automated Quotations System or any
successor thereto) either (i) establish any Person that competes with the
Corporation or any of its Subsidiaries or (ii) be affiliated or connected
with any Person that carries on any business within the states of Wisconsin,
Illinois and Missouri, the states contiguous thereto, elsewhere in the United
States and the world, that is competitive with the business of the
Corporation or any of its Subsidiaries in a capacity which is competitive in
any of its duties, responsibilities or activities with the business of the
Corporation or any of its Subsidiaries. Without limiting the generality of
the preceding sentence, the Executive covenants and agrees that he will not
directly or indirectly solicit, divert or accept business from or otherwise
take away or interfere with any customer of the Corporation or any of its
Subsidiaries, including without limitation any Person who was a customer or
whose business was being pursued by the Corporation or any of its
Subsidiaries within (x) the period of the Executive's employment with the
Corporation, (y) one (1) year prior to such employment or (z) one (1) year
after the termination of such employment, including all customers directly or
indirectly produced or generated by the Executive. The parties further agree
that if the Executive becomes affiliated or connected with any Person
described in clause (ii) of this Paragraph 10(a) during either his employment
with the Corporation or the Post-Employment Restriction Period, the Executive
shall be obliged to show by clear and convincing evidence that none of his
duties, responsibilities or activities entail employment in a capacity which
has been, is or is likely to become, competitive with the business of the
Corporation or any of its Subsidiaries. The parties hereto
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agree that the covenant contained in clause (ii) of this Paragraph 10(a)
shall be construed as a series of separate covenants, one for each state or
other geographic area specified in such clause and, except for geographic
coverage, each separate covenant shall be deemed identical.
b. The Executive further covenants and agrees that he will not for
a period of three (3) years after the termination of his employment
hereunder, except with the express prior written consent of the Chairman and
Chief Executive Officer of Harbour Group Ltd., any successor to Harbour Group
Ltd. or their respective designees, directly or indirectly, accept
employment, be employed by or be a principal of any business or enterprise
operating within the United States which then employs or has as a principal
or holder of any interest therein (except as the holder of not more than one
percent (1%) of the outstanding shares of a corporation whose shares are
publicly traded) any individual who was previously employed in a managerial
or executive position with the Corporation or any of its Affiliates, provided
however, that this prohibition shall not be applicable if (i) such business
or enterprise does not compete with the Corporation or its Affiliates, or
(ii) (x) such business or enterprise engages in activities which do compete
and other activities which do not compete with the Corporation or its
Affiliates, (y) the Executive and the other individual who was previously
employed by the Corporation or any of its Affiliates are employed by such
business or enterprise in connection with activities which in no way compete
with the Corporation or its Affiliates and (z) neither the Executive nor the
other individual who was previously employed by the Corporation or its
Affiliates is or proposes to be a principal of such business or enterprise.
c. If any provision of the covenants and agreements set forth above
shall be held invalid or unenforceable because of the scope of the territory
or the actions thereby restricted, or the period of time within which such
covenant or agreement is operative, or for any other reason, it is the intent
of the parties hereto that such provision shall be construed by limiting and
reducing it, or, if necessary, eliminating it so that the provisions hereof
be valid and enforceable to the extent compatible with applicable law as
determined by a court of competent jurisdiction.
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11. OPTION TO PURCHASE THE SHARES.
a. In the event that the Executive breaches any of the covenants
contained in Paragraphs 9 or 10, the Corporation shall have the right, but is
not required, to purchase all of the Shares which are then owned by the
Executive or any representative, successor or transferee of the Executive.
Any right to purchase under this Paragraph 11 shall be exercised in writing
within sixty (60) days of the date on which the Corporation becomes aware
that any such breach has occurred. Settlement shall be held at the principal
office of the Corporation at such date and time within ninety (90) days from
the time that the notice of intent to exercise required by this subparagraph
11a has been sent by the Corporation as shall be selected by the Corporation.
For purposes of this subparagraph 11a, (i) the Executive shall be
conclusively deemed and considered to own all Shares owned by himself, his
estate, his executors or administrators, his distributees and his personal
and legal representatives, and (ii) no Shares owned by a transferee of the
Executive other than those transferees referred to in clause (i) above shall
be subject to purchase by the Corporation. Except as otherwise provided in
Paragraph 5, the purchase price for such Shares shall be the original
principal amount of the Note.
b. The purchase price for the Shares purchased pursuant to
subparagraph 11a above shall be paid by delivering to the Executive or any
transferee of the Executive referred to in subparagraph 11a(i) above the Note
marked paid in full, together with the Corporation's check in the amount, if
any, by which the purchase price exceeds the principal balance then
outstanding on the Note.
12. MANDATORY PURCHASE OF THE SHARES.
a. If the Executive's employment with the Corporation terminates
for any reason (including his death) and if shares of the Common Stock are
not Publicly Traded on the date of such termination, the Corporation shall
repurchase to the extent it may lawfully do so, and the Executive or each
transferee of the Executive under subparagraph 3b shall sell to the
Corporation, the Shares then owned by the Executive. For purposes of this
subparagraph 12a,
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the Executive shall be conclusively deemed and considered to own all Shares
owned by himself, his estate, his executors or administrators, his
distributees and his personal and legal representatives and any other
transferee. Settlement shall be held at the principal office of the
Corporation at such date and time within one hundred and twenty (120) days of
the termination of the Executive's employment as shall be selected by the
Corporation. The purchase price for such Shares shall be their book value,
as computed by the Corporation's internal auditing staff and certified by the
chief financial officer of Harbour Group Ltd. (or any successor to Harbour
Group Ltd.), as of the last day of the month preceding the month in which the
Executive's employment was terminated, which certification shall be final and
binding; provided, however, that the purchase price for shares purchased
pursuant to this subparagraph 12a shall not be less than eighty percent (80%)
of the Purchase Price.
b. The purchase price for the Shares purchased pursuant to
subparagraph 12a above shall be paid in the following manner:
(i) If the purchase price for the Shares, as determined
pursuant to subparagraph 12a above, exceeds the principal balance, plus
accrued interest, due on the Note and such excess is not greater than one
hundred thousand dollars ($100,000.00), the Corporation shall pay the
purchase price for the Shares by (a) returning to the Executive or any
transferee referred to in subparagraph 12a above the Note marked "paid in
full", and (b) paying by cash or check the difference between the purchase
price of the Shares and the principal balance, plus accrued interest, due on
the Note.
(ii) If the purchase price for the Shares, as determined
pursuant to subparagraph 12a above, exceeds the principal balance, plus
accrued interest, due on the Note and such excess is greater than one hundred
thousand dollars ($100,000.00), the Corporation shall pay the purchase price
in installments as follows: (a) the first installment by (1) returning to
the Executive or any transferee referred to in subparagraph 12a above the
Note marked "paid in full", and (2) paying by cash or check one hundred
thousand dollars ($100,000.00) and (b) annual
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installments thereafter by paying by cash or check an amount equal to the
lesser of one hundred thousand dollars ($100,000.00) and the balance of the
purchase price remaining outstanding on the date each installment is due,
plus interest on such outstanding balance calculated at a rate equal to the
Prime Rate on such due date. The Corporation shall be entitled to prepay all
or any portion of the purchase price, plus interest thereon, at any time
without penalty.
(iii) If the purchase price for the Shares, as determined
pursuant to Paragraph 12a above, does not exceed the principal balance, plus
accrued interest, due on the Note, then the purchase price shall be paid by
crediting amounts due under the Note, up to the purchase price amount, with
such credit applied first to accrued interest due under the Note then to
principal.
13. CONFLICT BETWEEN PARAGRAPHS. Notwithstanding any other provision
of this Agreement to the contrary, to the extent that there shall be any
conflict between the provisions of Paragraphs 3 or 4 and the provisions of
Paragraph 11 in regard to the right of the Corporation to purchase the Shares
from the Executive, the provisions of Paragraph 11 shall control, and to the
further extent that there shall be any conflict between the provisions of
Paragraphs 11 and 12 in regard to the right or obligation of the Corporation
to purchase the Shares from the Executive, the provisions of Paragraph 11
shall control.
14. SALE OF CONTROL.
a. In the event that the holder of more than fifty percent (50%) of
the outstanding shares of the Common Stock or more than fifty percent (50%)
of the outstanding shares of the common stock of an Affiliate of the
Corporation which owns a majority of the outstanding shares of the Common
Stock (in either case, the "Majority Stockholder") shall seek to sell more
than fifty percent (50%) of the outstanding shares of the Common Stock to a
Person which is not an Affiliate of the Majority Stockholder (other than an
underwriter in connection with an offering pursuant to a registration
statement filed under the Act), the Executive shall be provided a written
notice which specifies the identity of the proposed purchaser, the number of
shares of the Common Stock proposed to be purchased and the consideration
proposed to be paid by such
16
purchaser for each share of the Common Stock (the "Sale of Control Notice").
The Executive shall have the option, exercisable in writing within ten (10)
calendar days of the mailing of the Sale of Control Notice, to require the
Majority Stockholder to include in such proposed sale the number of Shares
(the "Stockholder's Included Shares") which is calculated in the manner
specified in the following sentence. The Stockholder's Included Shares shall
be determined by multiplying the number of Shares owned by the Executive on
the date that the Sale of Control Notice is mailed by a fraction, the
numerator of which is the number of shares of the Common Stock which the
proposed purchaser desires to purchase and the denominator of which is the
total number of shares of the Common Stock which are outstanding on the date
that the Sale of Control Notice is mailed. In the event that the number so
determined includes a fraction which is greater than .50, the Stockholder's
Included Shares shall be the next larger whole integer and in the event that
the number so determined includes a fraction which is equal to or less than
.50, the Stockholder's Included Shares shall be the next smaller whole
integer. For example, assume the proposed purchaser desires to purchase
450,000 shares of the Common Stock. On the date that the Sale of Control
Notice is mailed, there are 500,000 shares of the Common Stock outstanding
and the Executive owns 1,500 of such shares. The number of the Stockholder's
Included Shares would be 1,350, which is 1,500 times 450,000/500,000.
b. The parties hereto recognize and acknowledge that any
prospective purchaser of the business of the Corporation may wish to purchase
(i) all of the outstanding shares of the Common Stock, (ii) all of the
outstanding shares of the common stock of the Majority Stockholder or (iii)
all or substantially all of the assets of the Corporation, which purchase may
be made in conjunction with the purchase of the business of an Affiliate or
Affiliates of the Corporation. Accordingly, the Executive and each
transferee of the Executive under subparagraph 3b agrees, upon the request of
the Corporation, to (x) sell all of the Shares then owned by the Executive to
any prospective purchaser of the business of the Corporation which is not an
Affiliate of the Majority Stockholder (a "100% Purchaser") or, at the option
of the Majority Stockholder or the Corporation, to the Corporation in
connection with the sale of all of
17
the outstanding shares of the Common Stock to a 100% Purchaser or the sale of
all of the outstanding shares of the common stock of an Affiliate of the
Corporation which owns a majority of the outstanding shares of the Common
Stock to a 100% Purchaser and (y) at any time prior to the tenth anniversary
of this Agreement, vote the Shares then owned by the Executive in favor of
(A) any sale of all or substantially all of the assets of the Corporation to
a 100% Purchaser or (B) any merger or consolidation of the Corporation with a
100% Purchaser, in each case which has been approved by the Board of
Directors of the Corporation in accordance with the provisions of this
subparagraph 14b. The Executive and each such transferee agrees promptly
upon any request made by the Corporation prior to the tenth anniversary of
this Agreement and without compensation to execute and deliver an amendment
to this Agreement or other instrument which extends for an additional ten
year period the Executive's agreement to vote the Shares as specified in
subparagraph 14(b)(y). For purposes of this subparagraph 14b, the Executive
shall be conclusively deemed and considered to own all Shares owned by
himself, his estate, his executors and administrators, his distributees and
his personal and other legal representatives and any other transferee.
In the event that the Majority Stockholder shall have entered into an
agreement to sell (a) all of the outstanding shares of the Common Stock owned
by it or (b) all of the outstanding shares of the common stock of an
Affiliate of the Corporation which owns a majority of the outstanding shares
of the Common Stock to a 100% Purchaser or the Corporation shall have entered
into an agreement to sell all or substantially all of the assets of the
Corporation to a 100% Purchaser, whether individually or in conjunction with
the sale of the business of an Affiliate or Affiliates of the Corporation,
the Corporation's auditors, or their designee, shall allocate such portion of
the total purchase price to the then outstanding shares of the Common Stock
which is fair and reasonable (with each outstanding share being allocated the
same portion of the purchase price) giving such consideration as they deem
appropriate to the (i) terms and conditions of such agreement to sell, (ii)
book value and the earnings and projected earnings of the Corporation and
each Affiliate of the Corporation whose business is or will be sold pursuant
18
to such agreement to sell, determined in accordance with generally accepted
accounting principles consistently applied where relevant and appropriate in
the opinion of the Corporation's auditors or such designee and (iii) such
other factors as they may deem relevant to such allocation. The
determination of such allocation by the Corporation's auditors or their
designee shall be final and binding upon the parties hereto with respect to
the portion of the total purchase price which the Executive is entitled to
receive for the Shares pursuant to this subparagraph 14b. The Executive and
each transferee of the Executive under subparagraph 3b agrees to sell the
Shares to the Persons specified in this subparagraph 14b at the price per
share of the Common Stock allocated by such auditors or their designee at the
closing of the transactions contemplated by such agreement to sell.
For purposes of effectuating any sale of the Shares pursuant to this
subparagraph 14b, the Executive and each transferee of the Executive under
subparagraph 3b hereby grants to each of the Majority Stockholder and the
Corporation and their respective designees and assigns an irrevocable power
of attorney with respect to the transfer of the Shares and authorizes the
Corporation to deliver to the Majority Stockholder or any 100% Purchaser each
stock certificate representing the Shares. The Executive and each such
transferee agrees promptly upon request and without compensation to do all
acts and execute all agreements, documents, proxies, consents of stockholders
and instruments as shall be necessary or desirable to effectuate the
consummation of any agreement to sell all of the outstanding shares of the
Common Stock to a 100% Purchaser, any agreement to sell all of the
outstanding shares of the common stock of an Affiliate of the Corporation
which owns a majority of the outstanding shares of the Common Stock to a 100%
Purchaser and any agreement to sell all or substantially all of the assets of
the Corporation to a 100% Purchaser pursuant to this subparagraph 14b
including, but not limited to, delivering executed stock assignments separate
from certificate naming each of the Majority Stockholder and the Corporation
and their respective assigns and designees as his attorneys for the purpose
of effectuating such transfer. The Majority Stockholder and, in the event
that the Majority Stockholder or the Corporation elects to have the
Corporation purchase the Shares, the
19
Corporation agree to deliver or cause to be delivered to the Executive or his
transferees promptly following any sale of the Shares pursuant to this
Paragraph 14b the purchase price for the Shares less all amounts then owed by
the Executive to the Corporation pursuant to the Note.
15. CERTAIN INCIDENTAL REGISTRATION RIGHTS.
a. If the Corporation proposes to register for sale any shares of
the Common Stock owned by the Majority Stockholder under the Act at a time
when the Executive or any transferee of the Executive permitted by
subparagraph 3b owns any of the Shares, it will at each such time give
written notice (the "Registration Notice") to the Executive or such
transferee of its intention to do so and, upon the written request of the
Executive or such transferee given within twenty (20) days after the
Corporation gives such notice (which request shall state the intended method
of disposition of such holder's Shares), the Corporation will use its best
efforts to effect the registration of the number of the Shares (the
"Stockholder's Registered Shares") which is calculated in the manner
specified in the following sentence by including the Stockholder's Registered
Shares in such registration statement, all to the extent required to permit
the sale or other disposition of such Shares in accordance with the intended
method of sale or other disposition given in each such request. The
Stockholder's Registered Shares shall be determined by multiplying the number
of the Shares owned by the Executive and each transferee of the Executive
under subparagraph 3b on the date that the Registration Notice is mailed by a
fraction, the numerator of which is the number of shares of the Common Stock
which are included in such registration statement and the denominator of
which is the total number of shares of the Common Stock outstanding on the
date that the Registration Notice is mailed. In the event that the number so
determined includes a fraction which is greater than .50, the Stockholder's
Registered Shares shall be the next larger whole integer and in the event
that the number so determined includes a fraction which is equal to or less
than .50, the Stockholder's Registered Shares shall be that number alone.
For example, assume 250,000 shares of the Common Stock are included in such
registration statement. On the date that the Corporation mails the
Registration Notice, there are 500,000 shares of the Common Stock outstanding
and the Executive and such transferees own
20
1,500 of such shares. The number of the Stockholder's Registered Shares
would be 750, which is 1,500 times 250,000/500,000.
b. Notwithstanding anything to the contrary contained in
subparagraph 15a:
(i) In the event that any registration statement to be filed
pursuant to subparagraph 15a shall be, in whole or in part, in connection
with an underwritten public offering, the number of the Stockholder's
Registered Shares to be included in such registration statement may be
reduced, or no Stockholder's Registered Shares may be included in such
registration statement, if and to the extent that the managing underwriter(s)
shall give their written opinion that such inclusion would adversely affect
the marketing of the securities to be sold therein by the Majority
Stockholder.
(ii) The Corporation (A) may withdraw any registration
statement referred to in this Paragraph 15 without thereby incurring any
liability to the Executive and (B) shall in no event be obligated to register
any Shares in connection with the first underwritten public offering after
the date hereof, whether primary or secondary, of shares of the Common Stock,
including without limitation any sales of shares of the Common Stock related
to over-allotments in connection with such offering.
(iii) In the event that a distribution of shares of the Common
Stock covered by a registration statement referred to in subparagraph 15a is
to be underwritten, then any distribution of the Stockholder's Registered
Shares shall be underwritten by the same underwriters who are underwriting
the distribution of the securities of the Corporation for the account of the
Majority Stockholder, and the Executive shall enter into the agreement with
such underwriters contemplated under subparagraph 15b(iv).
(iv) In the event that the Corporation has an underwritten
offering of shares of the Common Stock, whether primary or secondary, the
Executive and each transferee of the Executive under subparagraph 3b shall
refrain from selling, making any short sale of, loaning,
21
granting any option for the purchase of, or otherwise disposing of any of
their Shares not registered pursuant to subparagraph 15a during the period of
time which is the longer of (A) the period of distribution of the shares of
the Common Stock by such underwriter(s) in the offering and (B) the period
requested by such underwriter(s), which shall in no event exceed one hundred
eighty (180) days.
16. RIGHT TO ACQUIRE ADDITIONAL SHARES. If at any time during the
Executive's employment with the Corporation or any Subsidiary, the
Corporation issues any shares of the Common Stock, any securities convertible
into or exchangeable for shares of the Common Stock or any options, warrants
or rights to acquire shares of the Common Stock or securities convertible
into or exchangeable for shares of the Common Stock to the Majority
Stockholder or any Affiliate of the Majority Stockholder (the "New Issue
Securities"), and if shares of the Common Stock are not Publicly Traded on
the date of such issuance, the Corporation agrees that not later than sixty
(60) days after the sale of any New Issue Securities it will offer in writing
to sell to the Executive such number or principal amount of the New Issue
Securities as would enable the Executive to maintain the same aggregate
percentage ownership interest in the shares of the Common Stock (which for
purposes of this Paragraph 16 shall include shares of the Common Stock issued
and outstanding, shares held in the Corporation's treasury from time to time
and shares subject to purchase pursuant to an option held by the Majority
Stockholder on the date hereof) after such sale of the New Issue Securities
as specified in the third WHEREAS clause of this Agreement. Notwithstanding
the immediately preceding sentence, the term "New Issue Securities" shall not
include shares of the Common Stock which are at any time subject to purchase,
by the Majority Stockholder pursuant to an Option Agreement between the
Corporation and the Majority Stockholder dated on or prior to the date of
this Agreement. The offer of the Corporation to the Executive described in
the first sentence of this Paragraph 16 shall contain the same price per
share, security, option, warrant or other right constituting New Issue
Securities and substantially similar terms and conditions as the sale of the
New Issue Securities which obligates the Corporation to make the offer. The
Executive shall be entitled to accept such offer only without
22
modification and only in writing for a period of ten (10) days after the
offer is made. In the event that such offer is accepted by the Executive,
the Executive shall deliver to the Corporation (i) a check in the amount of
the par value of the New Issue Securities being offered to the Executive and
(ii) a promissory note payable to the Corporation in the same form and having
the same date of maturity as the Note, bearing interest at a rate which is
two percent (2%) in excess of the Prime Rate and in the aggregate principal
amount of the purchase price of the shares of the New Issue Securities
offered to the Executive, less the amount of such check, within fifteen (15)
days after the offer is made. The note shall be secured by a pledge of the
New Issue Securities purchased by the Executive with the proceeds of the loan
evidenced thereby.
17. SPECIFIC PERFORMANCE. The Executive acknowledges that the services
to be rendered by him are of a special, unique and extraordinary character,
and in connection with rendering such services, he will have access to
Proprietary Information. The parties agree that it is impossible to measure
in money the damages that will accrue to the Corporation and its Subsidiaries
by reason of the Executive's failure to perform his obligations under this
Agreement, that such failure to perform will result in irreparable damage to
the Corporation and its Subsidiaries, and that specific performance of the
Executive's obligations may therefore be obtained by suit in equity. Without
limiting the generality of the foregoing sentence, the Corporation or any
Subsidiary shall be entitled to apply to any court of competent jurisdiction
for an injunction restraining the Executive from committing or continuing any
violation of Paragraphs 9 and/or 10. The Executive will not assert any claim
or defense in any action or proceeding to enforce any provision hereof that
the Corporation or any Subsidiary has or had an adequate remedy at law.
18. WRITTEN NOTICE. Any and all notices provided for herein shall be
given in writing and delivered by hand, or sent by registered or certified
mail, return receipt requested, with first-class postage prepaid, or by
facsimile with answer-back; and such notices shall be addressed: (i) if to
the Corporation, to the Secretary of the Corporation at the Corporation's
principal business office, with a copy to Chairman, Harbour Group Ltd., 0000
Xxxxxxx Xxxxxxxxx, Xxxxx 000,
00
Xxxxxxx, Xxxxxxxx 00000; and (ii) if to the Executive, to his address as
reflected in the records of the Corporation; or to such other address(es) as
the parties hereto shall designate by Written Notice, furnished to all
parties in the manner provided herein. Any notice which is required to be
made within a stated period of time shall be considered timely if delivered
or mailed before midnight of the last day of such period.
19. CERTAIN TRANSACTIONS ON BEHALF OF AFFILIATES. The Executive recognizes
and acknowledges that the Corporation may on the date of this Agreement be,
or may after the date of this Agreement become, liable for the indebtedness
of Affiliates of the Corporation as a consequence of being or becoming a
party to agreements evidencing such indebtedness or guaranteeing such
indebtedness. The Executive agrees to (i) the Corporation incurring
liability for the indebtedness of its Affiliates, whether such liability was
incurred prior to the date of this Agreement or incurred after the date of
this Agreement and (ii) not assert any claim against the Corporation or its
directors, officers or stockholders in connection with or relating to such
liability of the Corporation for the indebtedness of its Affiliates, whether
such liability was incurred prior to the date of this Agreement or incurred
after the date of this Agreement. The Executive further acknowledges that
the Majority Stockholder has the option to acquire up to 40,000 shares of
newly issued Common Stock (subject to adjustment for stock splits,
recapitalizations and the like) which option is exercisable at any time to
the extent that executive employees of the Corporation and its Subsidiaries
are holders less than 40,000 shares of the Common Stock.
20. NO RIGHT TO CONTINUED EMPLOYMENT. The Executive agrees that
neither the sale of the Shares by the Corporation to him nor any provision of
this Agreement shall (i) give the Executive any right to be retained in the
employ of the Corporation or any Subsidiary, (ii) affect the right of the
Corporation or any Subsidiary to discharge the Executive at any time or (iii)
affect the Executive's right to terminate his employment with the Corporation
or any Subsidiary at any time.
24
21. INVALID OR UNENFORCEABLE PROVISIONS. 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 provision had been omitted.
22. BENEFIT AND BURDEN. This Agreement shall inure to the benefit of,
and shall be binding upon, the parties hereto and their respective personal
or legal representatives, successors and assigns.
23. GENDER. The use of any gender herein shall be deemed to be and
include the other gender, and the use of the singular herein shall be deemed
to be and include the plural (and vice versa), whenever appropriate.
24. RULE 144 ACKNOWLEDGMENTS.
a. The Executive represents and warrants to the Corporation that (i)
he is purchasing the Shares for his own account without a view to any
distribution thereof in violation of the Act or any applicable state
securities laws, (ii) he is experienced in evaluating and making investments
of this type, and has had access to, and to his knowledge has received, all
the information that he reasonably has required to evaluate this investment
and (iii) he is financially able to bear the risks associated with an
investment in the Shares being purchased hereby.
b. The Executive acknowledges that the Corporation is issuing and
selling the Shares in reliance upon the representations and warranties set
forth in subparagraph 24a and that the Shares so acquired will be "restricted
securities" within the meaning of Rule 144 under the Act, and acknowledges
that such Shares may only be offered, sold, pledged or otherwise transferred
by him (i) if registered under the Act and registered or otherwise qualified
for sale under any applicable state securities laws or (ii) pursuant to any
exemption from such registration or qualification requirements, and that the
certificate(s) representing the Shares will bear a legend to this effect.
25
25. MODIFICATIONS. No change or modification of this Agreement shall
be valid unless the same is in writing and signed by all the parties hereto.
No waiver of any provision of this Agreement shall be valid unless in writing
and signed by the party against whom it is sought to be enforced. The
failure of any party at any time to insist upon strict performance of any
condition, promise, agreement or understanding set forth herein shall not be
construed as a waiver or relinquishment of the right to insist upon strict
performance of the same or other condition, promise, agreement or
understanding at a future time.
26. Post-Employment Restriction Period; Additional Compensation. For
the purposes of this Agreement the applicable "Post-Employment Restriction
Period" shall be determined as follows:
a. If the Executive's employment with the Corporation or any
Subsidiary is terminated for Cause, the Post-Employment Restriction Period
shall be a period of one (1) year commencing on the date of termination of
such employment.
b. If the Executive's employment with the Corporation and the
Subsidiaries is terminated due to a Permanent Disability, the Post-Employment
Restriction Period shall be a period of one (1) year commencing on the date
of termination of such employment. For the purpose of this Paragraph 26,
the Executive has suffered a "Permanent Disability" if the Board of Directors
of the Corporation determines that the Executive has been or will be unable,
as a result of physical or mental illness or incapacity, to perform his
duties to the Corporation and the Subsidiaries for a period of four (4)
consecutive months or for an aggregate of more than six (6) months in any
twelve-month period.
c. If the Executive's employment with the Corporation and its
Subsidiaries shall be terminated by the Corporation or such Subsidiaries
without Cause, or if the Executive terminates his employment within sixty
(60) days after a substantial reduction in his duties, responsibilities or
compensation, the Post-Employment Restriction Period shall be a period of one
(1) year commencing on the date of termination of such employment; provided
that (i) during the
26
Post-Employment Restriction Period the Corporation or its Subsidiaries shall
make monthly payments to the Executive and (ii) during the Benefits Period
the Corporation or a Subsidiary shall provide to the Executive, the Benefits,
as in effect on the date of termination of such employment, or the reasonable
equivalent thereof, as determined by the Board of Directors of the
Corporation in its sole discretion and business judgment. For the purposes
of this Paragraph 26, "Benefits Period" means a period, commencing on the
date that the Executive's employment with the Corporation and all of its
Subsidiaries terminates and ending on the earlier of (a) the end of the
initial Post-Employment Restriction Period and (b) the date that the
Executive commences other employment or any consulting arrangement. The
amount of the monthly payments shall be equal to one-twelfth (1/12) of the
Executive's annual base compensation as in effect on the date of termination
during the Benefits Period and 50% of such amount thereafter until the end of
the initial Post-Employment Restriction Period determined by this Paragraph
26c.
d. If the Executive terminates his employment with the Corporation
and the Subsidiaries for any reason other than the Corporation substantially
reducing his duties, responsibilities or compensation, within thirty (30)
days of the date of such termination the Corporation shall have the option to
designate an initial Post-Employment Restriction Period of six (6) months
commencing on the date of termination which option is exercisable by notice
given within thirty (30) days after the date on which the Corporation
receives notice of the Executive's termination of his employment.
Thereafter, the Corporation shall have three (3) additional options to extend
the Post-Employment Restriction Period for additional consecutive periods of
six (6) months each, which options shall be exercisable at the times and in
the manner set forth in this Paragraph 26d. If the initial Post-Employment
Restriction Period is determined by subparagraphs a, b or c above, at the end
of the initial Post-Employment Restriction Period the Corporation shall have
two (2) options to extend the Post-Employment Restriction Period for
additional consecutive periods of six (6) months each. The Corporation may
exercise its additional options under this Paragraph 26d by giving notice to
the Executive of each such election at any time which is not less than thirty
(30) days prior to the expiration of the
27
Post-Employment Restriction Period (as may have then been extended by prior
exercise of an option pursuant to this Paragraph 26d). During any such
extension of the Post-Employment Restriction Period, the Corporation shall
make monthly payments to the Executive in an amount equal to one twelfth
(1/12th) of the Executive's annual base compensation as in effect on the date
of termination of his employment until the first full month in which the
Executive has obtained other employment or any consulting arrangement and 50%
of such amount thereafter. Notwithstanding any provision of this Paragraph 26
to the contrary, the Post-Employment Restriction Period shall not be extended
beyond a period of two (2) years without the consent of the Executive.
e. During the Post-Employment Restriction Period (including any
extensions thereof) the Executive shall give written notice to the
Corporation within five (5) days of any change in his employment or in his
duties, responsibilities or activities pursuant thereto. If the Executive
voluntarily terminates his employment with the Corporation and all of its
Subsidiaries, the Executive shall give written notice to the Corporation of
any employment which the Executive at that time expects to be engaged in
within the six-month period following his termination.
f. Notwithstanding any other provision of this Paragraph 26 to the
contrary, the provisions of this Paragraph do not, and are not intended to,
waive, disclaim or otherwise extinguish any rights of the Executive as an
employee under any applicable federal, state or local statute or ordinance.
27. ENTIRE AGREEMENT. This Agreement contains all of the promises,
agreements, conditions, understandings, warranties and representations
between the parties hereto with respect to the subject matter of this
Agreement. This Agreement is, and is intended by the parties to be, an
integration of any and all prior agreements or understandings, oral or
written, with respect to the subject matter of this Agreement.
28
28. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of Missouri, except as otherwise provided in
Paragraph 1(f) and the following sentence. All matters concerning the
authorization of this Agreement and the consummation of the transactions
contemplated hereby including without limitation the issuance of the Shares,
the payment for the Shares and the fully paid and nonassessable status of the
Shares, shall be construed and enforced in accordance with the General
Corporation Law of the State of Delaware.
29. HEADINGS. The headings and other captions in this Agreement are
for convenience and reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
[The balance of this page has been intentionally left blank]
29
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first hereinabove written.
WITNESS: UNIQUIP CORPORATION
/s/ Xxxxxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx
Title: VP
/s/ Xxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
----------------------------- ---------------------------
Xxxx X. Xxxxxx
The undersigned, being the record and beneficial owner of more than
fifty percent (50%) of the issued and outstanding shares of the Common Stock
of either the above-named Corporation, hereby agrees to comply with the
provisions of Paragraph 14 hereof.
Harbour Group Investments III, L.P.,
a Delaware limited partnership
By: Harbour Group III Management Co., L.P.,
General Partner
By: HGM III Co., General Partner
by: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
Dated: September 20, 1995
30
