EXHIBIT 10.11
TRANSFER RESTRICTION AGREEMENT
This Transfer Restriction Agreement (this "Agreement") is made and entered
into as of May 31, 2002, by and among Xxxxxx Associates, Inc., a Delaware
corporation (the "Company") and Xxxxxx Holdings LLC, an Illinois limited
liability company ("Holdings").
WITNESSETH:
WHEREAS, Holdings is the beneficial owner of shares of Class B Common
Stock, par value $0.01 per share, of the Company (the "Class B Common Stock");
and
WHEREAS, Holdings and the Company desire to address herein certain rights
and obligations with respect to the disposition of the Class B Common Stock as
set forth in Holdings' Operating Agreement (the "Operating Agreement").
NOW, THEREFORE, in consideration of the premises, covenants and provisions
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
LIMITATIONS ON TRANSFER OF SHARES
Section 1.1. Holdings hereby certifies that (a) Section 6 of its Operating
Agreement contains certain restrictions on transfer of shares of Class B Common
Stock it beneficially owns (the "Transfer Restriction Provisions") and (b)
Exhibit A is a true and complete copy of the Operating Agreement as in effect on
the date hereof and no action has been taken for the purpose of effecting any
amendment or modification thereof.
Section 1.2. Holdings agrees that it shall not sell, transfer, pledge or
otherwise dispose, whether directly or indirectly, whether or not for value, or
distribute shares of Class B Common Stock for a period of two years from the
date of the initial public offering of the Company's common stock (the "IPO"),
except: (a) with the approval of the independent directors of the Company, on
the basis of a determination that such action is in the best interests of the
Company or is otherwise appropriate in light of a particular individual's
economic hardship or (b) distributions to owners resident outside of North
America upon approval of Holdings' Executive Committee or (c) distributions to
owners after the first anniversary of the IPO.
Section 1.3. Holdings agrees that any distribution to an owner of shares of
Class B Common Stock prior to the second anniversary of the date of the IPO,
will be subject to the condition that each such owner agrees to be bound by the
Transfer Restriction Provisions through the second anniversary of the date of
the IPO.
Section 1.4. Holdings agrees that it shall not amend or waive the Transfer
Restriction Provisions or the provisions of Section 6 of its Operating Agreement
governing goodwill shares and the market value of such shares without the
approval of the independent directors of the
Company on the basis of a determination that such action is in the best
interests of the Company or is otherwise appropriate in light of a particular
individual's economic hardship.
ARTICLE II
OTHER AGREEMENTS OF THE PARTIES
Section 2.1. Assignment. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of Holdings and the
Company.
ARTICLE III
MISCELLANEOUS
Section 3.1. Term of the Agreement. This Agreement shall remain in full
force and effect until the fourth anniversary of the date of the IPO unless
sooner terminated by the Company.
Section 3.2. Amendment. The provisions of this Agreement may be amended
only with the written consent of the Company and Holdings.
Section 3.3. Waivers. The failure of the Company at any time or times to
require performance of any provision of this Agreement shall in no manner affect
the rights at a later time to enforce the same. No waiver by the Company of the
breach of any term contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such breach or the breach of any other term of this
Agreement. Either party may waive the provisions of this Agreement, provided,
however, that the Company may only waive provisions of this Agreement with the
approval of the independent directors of the Company, on the basis of a
determination that such action is in the best interests of the Company or is
otherwise appropriate in light of a particular individual's economic hardship.
Section 3.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 3.5. Notices. Any communication, demand or notice to be given
hereunder will be duly given (and shall be deemed to be received) when delivered
in writing by hand or first class mail or by facsimile to a party at its address
as follows:
If to Holdings, to: 000 Xxxx Xxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel.
If to the Company, to: 000 Xxxx Xxx Xxxx
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Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel.
Any notice which is required to be given in writing pursuant to the terms of
this Agreement may be given by facsimile.
Section 3.6. Section Headings. The headings of sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation.
Section 3.7. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute but one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be
duly executed this Agreement as of the dates indicated.
XXXXXX ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxx
Printed Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXX HOLDINGS LLC
By: /s/ Xxxxxx X. Xxxxxx
Printed Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Executive Committee
and Authorized Representative
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