Exhibit 10.14
FORM OF MANAGEMENT STOCK OPTION AGREEMENT
MANAGEMENT STOCK OPTION AGREEMENT, dated as of __________, by and
between Allied Worldwide, Inc. (formerly NA Holding Corporation), a Delaware
corporation ("Worldwide"), and the grantee whose name appears on the signature
page hereof (the "Grantee").
W I T N E S S E T H:
WHEREAS, to motivate key employees of Worldwide and the Subsidiaries
by providing them an ownership interest in Worldwide, the Board of Directors of
Worldwide (the "Board") has established the Allied Worldwide, Inc. Stock
Incentive Plan (formerly the NA Holding Corporation Stock Incentive Plan), as
the same may be amended from time to time (the "Plan"); and
WHEREAS, the Grantee has purchased the number of shares of Common
Stock, par value $____ per share, of Worldwide (the "Common Stock") set forth on
the signature page to the Management Stock Subscription Agreement, dated as of
the date hereof, between Worldwide and the Grantee;
WHEREAS, pursuant to the Plan, the Board has authorized the grant to
the Grantee of non-qualified stock options to purchase the aggregate number of
shares of Common Stock set forth on the signature page hereof (each, a "Share"
and, collectively, the "Shares"), at an exercise price per Share of $_____ and
WHEREAS, the Grantee and Worldwide desire to enter into an agreement
to evidence and confirm the grant of such stock options on the terms and
conditions set forth herein;
NOW, THEREFORE, to evidence the stock options so granted, and to set
forth the terms and conditions governing such stock options, Worldwide and the
Grantee hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Affiliate" shall mean, with respect to any person, any other
person controlled by, controlling or under common control with such
person.
(b) "Annual EBITDA Target" shall mean, with respect to each of the
five Fiscal Years after the date hereof that are included in the Business
Plan, the EBITDA targeted for such Fiscal Year in the Business Plan;
provided, however, that in the event Worldwide or any Subsidiary
consummates a significant acquisition, disposition or other corporate
transaction or series of transactions
that, in the judgment of the Board, would reasonably be expected to impact
the consolidated earnings of Worldwide and the Subsidiaries, the EBITDA
Target for the relevant Fiscal Years may be appropriately adjusted by the
Board to reflect such transaction or series of transactions.
(c) "Applicable Percentage" shall mean, as of any date of
determination, the excess of (i) the quotient, expressed as a percentage,
of (x) the actual, aggregate EBITDA achieved by Worldwide and the
Subsidiaries during the Measurement Period divided by (y) the Cumulative
EBITDA Target over (ii) the percentage, if any, of all of the Performance
Options granted to the Grantee hereunder that have become vested in
accordance with Section 3(b)(ii) prior to such date of determination.
(d) "Applicable Share Valuation" shall mean the annual valuation of
the Shares performed by an independent valuation firm chosen by the Board
as of the last day of the last Fiscal Year ending prior to the
Determination Date, except that, in the case of a Determination Date
occurring during the fourth fiscal quarter of any Fiscal Year beginning
with the fourth quarter of the 1999 Fiscal Year, the term "Applicable
Share Valuation" shall mean the annual valuation of the Shares performed
by an independent valuation firm chosen by the Board as of the last day of
such fourth fiscal quarter. Such annual valuations shall be performed for
the 2000 Fiscal Year and for each Fiscal Year ending thereafter and prior
to any initial Public Offering as promptly as practicable following the
end of each such Fiscal Year.
(e) "Board" shall mean the Board of Directors of Worldwide.
(f) "Business Plan" shall mean the business plan of Worldwide and
the Subsidiaries for the first five Fiscal Years after the date hereof, as
adopted by the Board.
(g) "CD&R Fund" shall mean Xxxxxxx, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership, and any
successor investment vehicle managed by Xxxxxxx, Dubilier & Rice, Inc.
(h) "Cause" shall mean (i) the continued and willful failure of the
Grantee substantially to perform the duties of his or her employment for
Worldwide or any Subsidiary (other than any such failure due to the
Grantee's physical or mental illness) after a demand for substantial
performance has been delivered in writing to the Grantee by the executive
to whom the Grantee reports or by the Board, which demand identifies the
manner in which such executive or the Board, as the case may be, believes
that the Grantee has not substantially performed such
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duties, (ii) the Grantee's engaging in willful and serious misconduct that
has caused or is reasonably expected to result in material injury to
Worldwide or any of its Subsidiaries or Affiliates, (iii) the Grantee's
conviction of, or entering a plea of guilty or nolo contendere to, a crime
that constitutes a felony or (iv) the material breach by the Grantee of
any of his or her obligations hereunder or under any other written
agreement or covenant with Worldwide or any of its Subsidiaries or
Affiliates.
(i) "Change in Control" shall mean the first to occur of the
following events after the date hereof:
(i) the acquisition by any person, entity or "group" (as
defined in Section 13(d) of the Exchange Act), other than Worldwide,
the Subsidiaries, any employee benefit plan of Worldwide or the
Subsidiaries, the CD&R Fund or any Affiliate of the CD&R Fund, of
50% or more of the combined voting power of Worldwide's or North
American Van Lines's ("NAVL") then outstanding voting securities;
(ii) the merger or consolidation of Worldwide or NAVL, as a
result of which persons who were stockholders of Worldwide or NAVL,
as the case may be, immediately prior to such merger or
consolidation, do not, immediately thereafter, own, directly or
indirectly, more than 50% of the combined voting power entitled to
vote generally in the election of directors of the merged or
consolidated company;
(iii) the liquidation or dissolution of Worldwide or NAVL
other than a liquidation of Worldwide or NAVL into the other or into
any Subsidiary; and
(iv) the sale, transfer or other disposition of all or
substantially all of the assets of Worldwide or NAVL to one or more
persons or entities that are not, immediately prior to such sale,
transfer or other disposition, Affiliates of Worldwide, NAVL or the
CD&R Fund.
(j) "Change in Control Price" shall mean the price per share of
Common Stock paid in conjunction with any transaction resulting in a
Change in Control (as determined in good faith by the Board if any part of
such price is payable other than in cash).
(k) "Common Stock" shall mean the Common Stock, par value $.01 per
share, of Worldwide.
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(l) "Covered Options" shall have the meaning set forth in Section
4(b) hereof.
(m) "Cumulative EBITDA Target" shall mean the sum of the Annual
EBITDA Targets for each of the first five Fiscal Years included in the
Business Plan, as the same may be adjusted from time to time in accordance
with this Agreement.
(n) "Delay Period" shall have the meaning set forth in Section 10(c)
hereof.
(o) "Determination Date" shall mean the effective date of any
termination of the Grantee's employment that gives rise to the successive
rights of Worldwide and the CD&R Fund to purchase Covered Options pursuant
to Section 5(c).
(p) "Disability" shall mean a physical or mental disability or
infirmity that prevents the performance of the Grantee's
employment-related duties lasting (or likely to last, based on competent
medical evidence presented to the Board) for a period of six months or
longer. The Board's reasoned and good faith judgment as to Disability
shall be final and shall be based on such competent medical evidence as
shall be presented to it by the Grantee or by any physician or group of
physicians or other competent medical expert employed by the Grantee or
Worldwide to advise the Board.
(q) "EBITDA" shall have the meaning assigned to such term in the
Credit Agreement, dated as of November 19, 1999 and amended as of November
23, 1999 (the "Credit Agreement"), among North American Van Lines, Inc.
("NAVL"), the Foreign Subsidiary Borrowers from time to time party
thereto, the several banks and financial institutions from time to time
party thereto, The Bank of New York, as documentation agent, Banc of
America Securities LLC, as syndication agent, and The Chase Manhattan
Bank, as administrative agent, as such agreement may be amended from time
to time, or, if such agreement is no longer in effect and NAVL is party to
a credit agreement that has replaced or refinanced the Credit Agreement or
any successor credit agreement, as defined in such other credit agreement
as shall then be in effect.
(r) "Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
(s) "Exercise Date" shall have the meaning set forth in Section 6
hereof.
(t) "Exercise Price" shall have the meaning set forth in Section 6
hereof.
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(u) "Exercise Shares" shall have the meaning set forth in Section 6
hereof.
(v) "Extraordinary Termination" shall mean a termination of the
Grantee's employment with Worldwide and the Subsidiaries by reason of the
Grantee's death, Disability or Retirement.
(w) "Fair Market Value" shall mean, as of any date, the fair market
value on such date of a share of Common Stock as determined in good faith
by the Board. In making a determination of Fair Market Value, the Board
shall give due consideration to such factors as it deems appropriate,
including, without limitation, the earnings and certain other financial
and operating information of Worldwide and the Subsidiaries in recent
periods, the potential value of Worldwide and the Subsidiaries as a whole,
the future prospects of Worldwide and the Subsidiaries and the industries
in which they compete, the history and management of Worldwide and the
Subsidiaries, the general condition of the securities markets, the fair
market value of securities of companies engaged in businesses similar to
those of Worldwide and the Subsidiaries and the Applicable Share
Valuation. The determination of Fair Market Value will not give effect to
any restrictions on transfer of the shares of Common Stock or the fact
that such Common Stock would represent a minority interest in Worldwide.
Notwithstanding the foregoing, following a Public Offering, Fair Market
Value shall mean the average of the high and low trading prices for a
share of Common Stock on the primary national exchange (including NASDAQ)
on which the Common Stock is then traded on the trading day immediately
preceding the date as of which such Fair Market Value is determined.
(x) "Financing Agreements" shall have the meaning set forth in
Section 10(a) hereof.
(y) "First Purchase Period" shall have the meaning set forth in
Section 5(c)(i) hereof.
(z) "Fiscal Year" shall mean a fiscal year of Worldwide ending
December 31.
(aa) "Grant Date" shall mean the date hereof, which is the date on
which the Options are granted to the Grantee.
(bb) "Grantee" shall have the meaning set forth in the introductory
paragraph hereto.
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(cc) "Management Stock Subscription Agreement" shall mean the
management stock subscription agreement, substantially in the form of the
draft thereof attached as an exhibit to the Plan or such other form as the
Grantee and Worldwide may agree, to be entered into by Worldwide and the
Grantee in connection with the Grantee's exercise of any of the Options
and purchase of the Shares subject to any such Options pursuant to Section
6 hereof.
(dd) "Measurement Period" shall mean, as of any date of
determination, the period commencing on the first day of the first Fiscal
Year included in the Business Plan and, subject to Section 9(b), ending on
the last day of the Fiscal Year ending coincident with or immediately
prior to such date of determination.
(ee) "New Employer" shall mean the Grantee's employer, or the parent
or a subsidiary of such employer, immediately following a Change in
Control.
(ff) "Normal Termination Date" shall mean the tenth anniversary of
the date hereof.
(gg) "Option" shall mean the right granted to the Grantee hereunder
to purchase one share of Common Stock for a purchase price equal to the
Option Price and otherwise subject to the terms and conditions of this
Agreement. The term "Options" shall mean, collectively, the Performance
Options and the Service Options granted to the Grantee hereby.
(hh) "Option Price" shall mean, with respect to each Share covered
by an Option, the exercise price at which the Grantee may purchase such
Share specified in Section 2(b) hereof.
(ii) "Performance Options" shall mean those Options that are subject
to the provisions of Section 3(b) hereof providing for the vesting of such
Options on the basis of the financial performance of Worldwide and the
Subsidiaries and the continued employment of the Grantee. Performance
Options have been granted to the Grantee pursuant to this Agreement with
respect to the number of Shares specified on the signature page hereof
under the heading "Performance Options."
(jj) "Plan" shall have the meaning set forth in the recitals hereto.
(kk) "Public Offering" shall mean the first day as of which sales of
Common Stock are made to the public in the United States pursuant to an
underwritten public offering of the Common Stock led by one or more
underwriters at least one of which is an underwriter of nationally
recognized standing.
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(ll) "Purchase Price" shall have the meaning set forth in Section
5(f).
(mm) "Registration and Participation Agreement" shall have the
meaning set forth in Section 7(f) hereof.
(nn) "Retirement" shall mean the Grantee's retirement from
employment with Worldwide and the Subsidiaries at or after age 65.
(oo) "Rule 144" shall mean Rule 144 promulgated under the Securities
Act.
(pp) "Second Purchase Period" shall have the meaning set forth in
Section 5(c)(i) hereof.
(qq) "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
(rr) "Service Options" shall mean those Options that are subject to
the provisions of Section 3(a) hereof providing for the vesting of such
Options on the basis of the Grantee's completion of service. Service
Options have been granted to the Grantee pursuant to this Agreement with
respect to the number of Shares specified on the signature page hereof
under the heading "Service Options."
(ss) "Shares" shall have the meaning specified in the preambles
hereto.
(tt) "Subsidiary" shall mean any corporation or other person, a
majority of whose outstanding voting securities or other equity interests
are owned, directly or indirectly, by Worldwide.
2. Grant of Options.
(a) Confirmation of Grant. Worldwide hereby evidences and confirms
its grant to the Grantee, effective as of the date hereof, of (i) Service
Options to purchase the number of Shares specified on the signature page hereof
under the heading "Service Options" and (ii) Performance Options to purchase the
number of Shares specified on the signature page hereof under the heading
"Performance Options". The Options are not intended to be incentive stock
options under the U.S. Internal Revenue Code of 1986, as amended. This Agreement
is subordinate to, and the terms and conditions of the Options granted hereunder
are subject to, the terms and conditions of the Plan. If there is any
inconsistency between the terms hereof and the terms of the Plan, the terms of
the Plan shall govern.
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(b) Option Price. Each Share covered by an Option shall have an
Option Price of $142.
3. Exercisability.
(a) Service Options. Except as otherwise provided in Section 9(a) of
this Agreement and subject to the continuous employment of the Grantee with
Worldwide or one or more of the Subsidiaries until the applicable vesting date,
the Service Options shall become vested in five equal annual installments, on
each of the first five anniversaries of the Grant Date.
(b) Performance Options. Except as otherwise provided in Section
9(b) of this Agreement and subject to the continuous employment of the Grantee
with Worldwide or one or more of the Subsidiaries until the applicable vesting
date, the Performance Options shall become vested as follows:
(i) 100% of the Performance Options shall become vested as of the
first day of the Fiscal Year immediately following the Fiscal Year, if
any, that the actual aggregate EBITDA achieved by Worldwide and the
Subsidiaries during the Measurement Period equals or exceeds the
Cumulative EBITDA Target;
(ii) the number of Performance Options equal to the product of (x)
the Applicable Percentage multiplied by (y) the total number of
Performance Options granted hereunder shall become vested on the last day
of each of the first five Fiscal Years after the Grant Date, such
Applicable Percentage to be determined as of the last day of such Fiscal
Year, provided in each such case that Worldwide and the Subsidiaries have
achieved at least 75% of the Annual EBITDA Target for such Fiscal Year;
and
(iii) any Performance Options that do not become vested in
accordance with either of the preceding clauses (i) or (ii) shall become
vested on the ninth anniversary of the Grant Date.
The Board shall determine in good faith whether and the extent to which
Worldwide and the Subsidiaries have achieved the Annual EBITDA Targets and the
Cumulative EBITDA Target and the determination of the Board shall be conclusive.
(c) Conditions. The Board, in its sole discretion, may accelerate
the vesting or exercisability of any Option, all Options or any class of
Options, at any time and from time to time. Shares covered by vested Options
may, subject to the provisions hereof, be purchased at any time and from time to
time on or after the date the corresponding Options become vested in accordance
with the provisions of this Section 3
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until the date one day prior to the date on which such Options terminate,
provided that any such purchase shall be effected pursuant to and subject to
Sections 5 and 6 hereof and the provisions contained in the Management Stock
Subscription Agreement related to the purchase of such Shares.
4. Termination of Options.
(a) Normal Termination Date. Subject to Sections 4(b) and 9, the
Options shall terminate and be canceled on the Normal Termination Date.
(b) Early Termination. If the Grantee's employment with Worldwide or
any Subsidiary is voluntarily or involuntarily terminated for any reason prior
to the Normal Termination Date, any Options held by the Grantee that have not
become vested on or before the effective date of such termination of employment
shall terminate and be canceled immediately upon such termination of employment.
Subject to the provisions of Sections 5(c) and 9, all Options held by the
Grantee on the effective date of such termination of employment that shall have
become vested on or before such effective date (such Options, the Covered
Options") shall remain exercisable for whichever of the following periods is
applicable, and if not exercised within such period, shall automatically
terminate and be canceled upon the expiration of such period: (i) if the
Grantee's employment is terminated by reason of an Extraordinary Termination,
the Covered Options shall remain exercisable solely until the first to occur
of (A) the six month anniversary of the effective date of the Grantee's
termination of employment or (B) the Normal Termination Date and (ii) if the
Grantee's employment is terminated for any reason other than (x) an
Extraordinary Termination or (y) for Cause, the Covered Options shall remain
exercisable solely until the first to occur of (x) the 60th day following the
earliest to occur of (1) the expiration of the Second Purchase Period, and (2)
the receipt by the Grantee of written notice that the CD&R Fund does not intend
to exercise its right to purchase the Covered Options pursuant to Section
5(c)(i) and (y) the Normal Termination Date. Notwithstanding anything else
contained in this Agreement, if the Grantee's employment with Worldwide or any
Subsidiary is terminated for Cause, all Options (whether or not then vested or
exercisable) shall automatically terminate and be canceled immediately upon such
termination. Nothing in this Agreement shall be deemed to confer on the Grantee
any right to continue in the employ of Worldwide or any Subsidiary, or to
interfere with or limit in any way the right of Worldwide or any Subsidiary to
terminate such employment at any time.
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5. Restrictions on Exercise; Non-Transferability of Options;
Repurchase of Options.
(a) Restrictions on Exercise. Once vested in accordance with the
provisions of this Agreement, the Options may be exercised only with respect to
full shares of Common Stock. No fractional shares of Common Stock shall be
issued. Notwithstanding any other provision of this Agreement, the Options may
not be exercised in whole or in part, and no certificates representing Shares
shall be delivered, (i) (A) unless all requisite approvals and consents of any
governmental authority of any kind having jurisdiction over the exercise of the
Options shall have been secured, (B) unless the purchase of the Shares upon the
exercise of the Options shall be exempt from registration under applicable U.S.
federal and state securities laws, and applicable non-U.S. securities laws, or
the Shares shall have been registered under such laws, and (C) unless all
applicable U.S. federal, state and local and non-U.S. tax withholding
requirements shall have been satisfied or (ii) if such exercise would result in
a violation of the terms or provisions of or a default or an event of default
under, any of the Financing Agreements. Worldwide shall use commercially
reasonable efforts to obtain the consents and approvals referred to in clause
(i)(A) of the preceding sentence and to obtain the consent of the parties to the
Financing Agreements referred to in clause (ii) of the preceding sentence so as
to permit the Options to be exercised.
(b) Non-Transferability of Options. Except as contemplated by
Section 5(c), the Options may be exercised only by the Grantee or, following his
death, by the Grantee's estate. Except as contemplated by Section 5(c), the
Option is not assignable or transferable, in whole or in part, and it may not,
directly or indirectly, be offered, transferred, sold, pledged, assigned,
alienated, hypothecated or otherwise disposed of or encumbered (including
without limitation by gift, operation of law or otherwise) other than by will or
by the laws of descent and distribution to the estate of the Grantee upon the
Grantee's death, provided that the deceased Grantee's beneficiary or the
representative of the Grantee's estate shall acknowledge and agree in writing,
in a form reasonably acceptable to Worldwide, to be bound by the provisions of
this Agreement and the Plan as if such beneficiary or the estate were the
Grantee.
(c) Purchase of Options on Termination of Employment.
(i) Termination of Employment. If the Grantee's employment with
Worldwide or any Subsidiary that employs the Grantee is terminated for any
reason other than for Cause, Worldwide shall have an option to purchase
all or any portion of the Covered Options and shall have 30 days from the
effective date of the Grantee's termination of employment (such 30-day
period being hereinafter referred to as the "First Purchase Period")
during which to give notice in writing
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to the Grantee (or, if the Grantee's employment was terminated by the
Grantee's death, the Grantee's estate) of its election to exercise or not
to exercise such right to purchase the Covered Options. Worldwide hereby
undertakes to use reasonable efforts to act as promptly as practicable
following such termination to make such election. If Worldwide (i) fails
to give notice that it intends to exercise its right to purchase the
Covered Options within the First Purchase Period or (ii) chooses to
purchase none or only a portion of the Covered Options, by giving such
notice, the CD&R Fund shall have the right to purchase all or any portion
of the Covered Options not purchased by Worldwide, and shall have until
the expiration of the earlier of (x) 30 days following the end of the
First Purchase Period or (y) 30 days from the date of receipt by the CD&R
Fund of written notice from Worldwide as to whether it intends to exercise
its right to purchase any of the Covered Options (such 30-day period being
hereinafter referred to as the "Second Purchase Period"), to give notice
in writing to the Grantee (or the Grantee's estate) of the CD&R Fund's
exercise of its right to purchase all or any portion of such Covered
Options. The Grantee (or the Grantee's estate) shall be entitled to retain
any Covered Options that are not purchased by Worldwide or the CD&R Fund
pursuant to this Section 5(c), subject to all of the provisions of this
Agreement (including, without limitation, Section 4(b)).
(ii) Purchase Price, etc. All purchases pursuant to this Section
5(c) by Worldwide or the CD&R Fund shall be for a purchase price and
effected in the manner prescribed by Sections 5(f), (g) and (h).
(d) Notice of Termination. Worldwide shall give written notice of
any termination of the Grantee's employment to the CD&R Fund, except that if
such termination (if other than as a result of death) is by the Grantee, the
Grantee shall give written notice of such termination to Worldwide and Worldwide
shall give written notice of such termination to the CD&R Fund.
(e) Public Offering. In the event that a Public Offering has been
consummated, neither Worldwide nor the CD&R Fund shall have any rights to
purchase the Covered Options pursuant to Section 5(c).
(f) Purchase Price. Subject to Section 10(c) hereof, the purchase
price to be paid to the Grantee (or the Grantee's estate) for the Covered
Options purchased pursuant to Section 5(c) (the "Purchase Price") shall be equal
to the excess, if any, of (i) the aggregate Fair Market Value, as of the
Determination Date, of the Shares then covered by those Covered Options being
purchased over (ii) the aggregate Option Price for such Shares.
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(g) Closing of Purchase; Payment of Purchase Price. Subject to
Section 10, the closing of a purchase of any Covered Options pursuant to this
Section 5 shall take place at the principal office of Worldwide on the tenth
business day following the receipt by the Grantee (or his estate) of Worldwide's
or the CD&R Fund's, as the case may be, notice of exercise of its right to
purchase any such Covered Options pursuant to Section 5(c). At the closing, (i)
subject to the proviso below, Worldwide or the CD&R Fund, as the case may be,
shall pay the Purchase Price to the Grantee (or his estate) for the Covered
Options being purchased by delivery of a check for such Purchase Price payable
to the order of the Grantee (or his estate) and (ii) the Grantee (or his estate)
shall deliver to Worldwide such instruments as Worldwide may reasonably request,
signed by the Grantee (or his estate), free and clear of all security interests,
liens, claims, encumbrances, charges, options, restrictions on transfer, proxies
and voting and other agreements of whatever nature; provided, however, that if
the Determination Date occurs during the first or last fiscal quarter of any
Fiscal Year, Worldwide or the CD&R Fund, as the case may be, may defer the
payment of a portion of the Purchase Price for the Covered Options being
purchased until the tenth business day following receipt by Worldwide of the
Applicable Share Valuation (such tenth business day, the "Deferred Payment
Date"). In the event of any such deferral, (i) at the closing of the purchase of
the Covered Options, Worldwide or the CD&R Fund, as the case may be, shall pay
to the Grantee (or his estate) an amount (the "First Installment Amount") equal
to 80% of the excess of (A) the aggregate Fair Market Value of the Shares then
covered by the Covered Options being purchased, determined on the basis of the
most recent available annual valuation of the Shares, over (B) the aggregate
Option Price for such Shares, and (ii) no later than the Deferred Payment Date,
Worldwide or the CD&R Fund, as the case may be, shall pay an additional amount
to the Grantee (or his estate) equal to the excess, if any, of (A) the sum of
(1) the Purchase Price for the Covered Options being purchased and (2) an amount
calculated by multiplying the First Installment Amount by a percentage equal to
the average annual cost to Worldwide and the Subsidiaries of their bank
indebtedness obligations outstanding during the period that payment of a portion
of the Purchase Price is delayed hereunder or, if there are no such obligations
outstanding, one percentage point greater than the average annual prime rate
charged during such period by Chase Bank or such other nationally recognized
bank designated by Worldwide, over (B) the First Installment Amount.
(h) Application of the Purchase Price to Certain Loans. The Grantee
agrees that Worldwide and the CD&R Fund shall be entitled to apply any amounts
to be paid by Worldwide or the CD&R Fund, as the case may be, to purchase the
Covered Options pursuant to this Section 5 to discharge any indebtedness of the
Grantee to Worldwide or any Subsidiary, or indebtedness that is guaranteed by
Worldwide or any Subsidiary, which indebtedness was incurred by the Grantee in
connection with his purchase of any shares of Common Stock.
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(i) Withholding. Whenever Shares are to be issued pursuant to the
Options, Worldwide may require the recipient of the Shares to remit to Worldwide
an amount in cash sufficient to satisfy any applicable U.S. federal, state and
local and non- U.S. tax withholding requirements as a condition to the issuance
of such Shares. In the event any cash is paid to the Grantee or the Grantee's
estate or beneficiary pursuant to this Section 5 or Section 9, Worldwide shall
have the right to withhold an amount from such payment sufficient to satisfy any
applicable U.S. federal, state and local and non-U.S. tax withholding
requirements. If shares of Common Stock are traded on a national securities
exchange or bid and ask prices for shares of Common Stock are quoted on the
NASDAQ, Worldwide may, if requested by the Grantee, withhold Shares to satisfy
the minimum applicable withholding requirements, subject to the provisions of
the Plan and any rules adopted by the Board regarding compliance with applicable
law, including, but not limited to, Section 16(b) of the Exchange Act.
6. Manner of Exercise. To the extent that any outstanding Options
shall have become and remain vested and exercisable as provided in Sections 3
and 4 and subject to such reasonable administrative regulations as the Board may
have adopted, such Options may be exercised, in whole or in part, by notice to
the Secretary of Worldwide in writing given at least 15 business days prior to
the date as of which the Grantee will so exercise the Options (the "Exercise
Date"), specifying the number of whole Shares with respect to which the Options
are being exercised (the "Exercise Shares") and the aggregate Option Price for
such Exercise Shares, provided that if shares of Common Stock are traded on a
U.S. national securities exchange or bid and ask prices for shares of Common
Stock are quoted over NASDAQ, notice may be given five business days before the
Exercise Date. On or before the Exercise Date, the Company and the Grantee shall
enter into a Management Stock Subscription Agreement which shall contain (unless
a Public Offering shall have occurred prior to the Exercise Date) provisions
corresponding to Section 5(c) hereof. In accordance with the Management Stock
Subscription Agreement, (a) on or before the Exercise Date, the Grantee shall
deliver to Worldwide full payment for the Exercise Shares in United States
dollars in cash, or cash equivalents satisfactory to Worldwide, and in an amount
equal to the product of the number of Exercise Shares, multiplied by the Option
Price (such product, the "Exercise Price") and (b) Worldwide shall deliver to
the Grantee a certificate or certificates representing the Exercise Shares,
registered in the name of the Grantee and bearing appropriate legends as
provided in Section 7(b) hereof. If, as of the Exercise Date, shares of Common
Stock are traded on a U.S. national securities exchange or bid and ask prices
for shares of Common Stock are quoted over NASDAQ, the Grantee may, in lieu of
tendering cash, tender shares of Common Stock that have been owned by the
Grantee for at least six months, having an aggregate Fair Market Value on the
Exercise Date equal to the Exercise Price or may deliver a combination of cash
and such shares of Common Stock having an aggregate Fair Market Value equal to
the difference between the Exercise Price and the amount of such cash as payment
of the Exercise Price, subject
13
to such rules and regulations as may be adopted by the Board to provide for the
compliance of such payment procedure with applicable law, including Section
16(b) of the Exchange Act. Worldwide may require the Grantee to furnish or
execute such other documents as Worldwide shall reasonably deem necessary (i) to
evidence such exercise, (ii) to determine whether registration is then required
under the Securities Act and (iii) to comply with or satisfy the requirements of
the Securities Act, applicable state or non-U.S. securities laws or any other
law.
7. Grantee's Representations, Warranties and Covenants.
(a) Investment Intention. The Grantee represents and warrants that
the Options have been, and any Exercise Shares will be, acquired by the Grantee
solely for the Grantee's own account for investment and not with a view to or
for sale in connection with any distribution thereof. The Grantee agrees that
the Grantee will not, directly or indirectly, offer, transfer, sell, pledge,
hypothecate or otherwise dispose of all or any of the Options or any of the
Exercise Shares (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of all or any of the Options or any of the Exercise Shares),
except in compliance with the Securities Act and the rules and regulations of
the Commission thereunder, and in compliance with applicable state securities or
"blue sky" laws and non-U.S. securities laws. The Grantee further understands,
acknowledges and agrees that none of the Exercise Shares may be transferred,
sold, pledged, hypothecated or otherwise disposed of unless the provisions of
the related Management Stock Subscription Agreement shall have been complied
with or have expired.
(b) Legends. The Grantee acknowledges that any certificate
representing the Exercise Shares shall bear an appropriate legend, which will
include, without limitation, the following language:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A MANAGEMENT STOCK SUBSCRIPTION AGREEMENT, DATED AS OF
DECEMBER 22, 1999 AND NEITHER THIS CERTIFICATE NOR THE SHARES
REPRESENTED BY IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH MANAGEMENT STOCK SUBSCRIPTION
AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME A COPY OF
THE CURRENT FORM OF WHICH IS ON FILE WITH THE SECRETARY OF
WORLDWIDE. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED
TO CERTAIN OF
14
THE BENEFITS OF AND ARE BOUND BY CERTAIN OF THE OBLIGATIONS SET
FORTH IN A REGISTRATION AND PARTICIPATION AGREEMENT, DATED AS OF
MARCH 30, 1998, AS AMENDED, AMONG WORLDWIDE AND CERTAIN STOCKHOLDERS
OF WORLDWIDE, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY
OF THE CURRENT FORM OF WHICH IS ON FILE WITH THE SECRETARY OF
WORLDWIDE."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE OR NON-U.S.
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) (A) SUCH
DISPOSITION IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (B) THE HOLDER HEREOF SHALL
HAVE DELIVERED TO WORLDWIDE AN OPINION OF COUNSEL, WHICH OPINION AND
COUNSEL SHALL BE REASONABLY SATISFACTORY TO WORLDWIDE, TO THE EFFECT
THAT SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF
SUCH ACT OR (C) A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION, REASONABLY SATISFACTORY TO COUNSEL FOR WORLDWIDE, SHALL
HAVE BEEN OBTAINED WITH RESPECT TO SUCH DISPOSITION AND (ii) SUCH
DISPOSITION IS PURSUANT TO REGISTRATION UNDER ANY APPLICABLE STATE
AND NON-U.S. SECURITIES LAWS OR AN EXEMPTION THEREFROM."
[FOR UNITED KINGDOM RESIDENTS ONLY:
"THE SHARES OF OUR COMMON STOCK ARE NOT LISTED, QUOTED OR DEALT IN
ON ANY STOCK EXCHANGE AND NO APPLICATION HAS BEEN MADE TO ANY STOCK
EXCHANGE FOR LISTING OR FOR QUOTATION OF, OR FOR PERMISSION TO DEAL
IN, ANY SUCH SHARES."]
[FOR SINGAPORE RESIDENTS ONLY:
"NEITHER THE SHARES NOR THE SHARES THAT MAY BE PURCHASED ON THE
EXERCISE OF THE OPTIONS MAY BE
15
OFFERED OR SOLD, NOR MAY ANY DOCUMENT OR OTHER MATERIAL IN
CONNECTION WITH THE SHARES OR SHARES THAT MAY BE PURCHASED ON THE
EXERCISE OF THE OPTIONS BE DISTRIBUTED, DIRECTLY OR INDIRECTLY, (I)
TO PERSONS IN SINGAPORE OTHER THAN IN CIRCUMSTANCES IN WHICH SUCH
OFFER OR SALE DOES NOT CONSTITUTE AN OFFER OR SALE OF THE SHARES OR
SHARES THAT MAY BE PURCHASED ON THE EXERCISE OF OPTIONS TO THE
PUBLIC IN SINGAPORE OR (II) TO THE PUBLIC OR ANY MEMBER OF THE
PUBLIC IN SINGAPORE OTHER THAN PURSUANT TO, AND IN ACCORDANCE WITH
THE CONDITIONS OF, AN EXEMPTION INVOKED UNDER DIVISION 5A OR PART IV
OF THE COMPANIES ACT, CHAPTER 50 OF SINGAPORE AND TO PERSONS TO WHOM
THE SHARES OR SHARES THAT MAY BE PURCHASED ON THE EXERCISE OF THE
OPTIONS MAY BE OFFERED OR SOLD UNDER SUCH EXCEPTION."]
(c) Securities Law Matters. The Grantee acknowledges receipt of
advice from Worldwide that (i) the Exercise Shares have not been registered
under the Securities Act or qualified under any state securities or "blue sky"
or non-U.S. securities laws, (ii) it is not anticipated that there will be any
public market for the Exercise Shares, (iii) the Exercise Shares must be held
indefinitely and the Grantee must continue to bear the economic risk of the
investment in the Exercise Shares unless the Exercise Shares are subsequently
registered under the Securities Act and such state laws or an exemption from
registration is available, (iv) Rule 144 is not presently available with respect
to sales of securities of Worldwide and Worldwide has made no covenant to the
Grantee to make Rule 144 available, (v) when and if the Exercise Shares may be
disposed of without registration in reliance upon Rule 144, such disposition can
be made only in limited amounts in accordance with the terms and conditions of
such Rule, (vi) Worldwide does not plan to file reports with the Commission or
make public information concerning Worldwide available unless required to do so
by law or the terms of its Financing Agreements (as hereinafter defined), (vii)
if the exemption afforded by Rule 144 is not available, sales of the Exercise
Shares may be difficult to effect because of the absence of public information
concerning Worldwide, (viii) a restrictive legend in the form heretofore set
forth shall be placed on the certificates representing the Exercise Shares and
(ix) a notation shall be made in the appropriate records of Worldwide indicating
that the Exercise Shares are subject to restrictions on transfer set forth in
this Agreement and, if Worldwide should in the future engage the services of a
stock transfer agent, appropriate stop-transfer restrictions will be issued to
such transfer agent with respect to the Exercise Shares.
16
(d) Compliance with Rule 144. If any of the Exercise Shares are to
be disposed of in accordance with Rule 144, the Grantee shall transmit to
Worldwide an executed copy of Form 144 (if required by Rule 144) no later than
the time such form is required to be transmitted to the Commission for filing
and such other documentation as Worldwide may reasonably require to assure
compliance with Rule 144 in connection with such disposition.
(e) Ability to Bear Risk. The Grantee covenants that the Grantee
will not exercise all or any of the Options unless (i) the financial situation
of the Grantee is such that the Grantee can afford to bear the economic risk of
holding the Exercise Shares for an indefinite period and (ii) the Grantee can
afford to suffer the complete loss of the Grantee's investment in the Exercise
Shares.
(f) Registration; Restrictions on Sale upon Public Offering. The
Grantee acknowledges and agrees that in respect of any Exercise Shares purchased
upon exercise of all or any of the Options, the Grantee shall be entitled to the
rights and subject to the obligations created under the Registration and
Participation Agreement, dated as of March 30, 1998, among Worldwide and certain
stockholders of Worldwide, as the same may be amended, modified or supplemented
from time to time (the "Registration and Participation Agreement"), to the
extent set forth therein. The Grantee agrees that, in the event that Worldwide
files a registration statement under the Securities Act with respect to an
underwritten public offering of any shares of its capital stock, the Grantee
will not effect any public sale or distribution of any shares of the Common
Stock (other than as part of such public offering), including but not limited
to, pursuant to Rule 144 or Rule 144A under the Securities Act, during the 20
days prior to and the 180 days after the effective date of such registration
statement. The Grantee further understands and acknowledges that any sale,
transfer or other disposition of the Exercise Shares by him following a public
offering will be subject to compliance with, and may be limited under, the
federal securities laws and/or state "blue sky" and/or non-U.S. securities laws.
(g) Section 83(b) Election. The Grantee agrees that, within 20 days
of any Exercise Date that occurs prior to a Public Offering, the Grantee shall
give notice to Worldwide in the event the Grantee has made or intends to make an
election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as
amended, with respect to the Exercise Shares purchased on such date, and
acknowledges that the Grantee will be solely responsible for any and all tax
liabilities payable by the Grantee in connection with the Grantee's exercise of
any Options or receipt of any Exercise Shares or attributable to the Grantee's
making or failing to make such an election.
8. Representations and Warranties of Worldwide. Worldwide represents
and warrants to the Grantee that (a) Worldwide has been duly incorporated and is
an existing corporation in good standing under the laws of the State of
Delaware,
17
(b) this Agreement has been duly authorized, executed and delivered by Worldwide
and constitutes a valid and legally binding obligation of Worldwide enforceable
against Worldwide in accordance with its terms and (c) the Exercise Shares, when
issued, delivered and paid for, upon exercise of the Options in accordance with
the terms hereof and the Management Stock Subscription Agreement, will be duly
authorized, validly issued, fully paid and nonassessable, and free and clear of
any liens or encumbrances other than those created pursuant to this Agreement,
the Management Stock Subscription Agreement or otherwise in connection with the
transactions contemplated hereby.
9. Change in Control.
(a) Service Options and Vested Performance Options. Subject to
Section 9(d), in the event of a Change in Control, all of the Included Options
(as defined in Section 9(b) below) shall be canceled in exchange for a payment
in accordance with Section 9(c) of an amount equal to the excess, if any, of (i)
the product of the Change in Control Price multiplied by the aggregate number of
Shares covered by all such Included Options immediately prior to the Change in
Control, (ii) over the aggregate Option Price for all such Shares. Performance
Options that are not Included Options, if any, shall automatically terminate and
be canceled upon the consummation of the transaction constituting the Change in
Control.
(b) Definition of Included Options. The term "Included Options"
shall mean, collectively, (i) each Service Option outstanding immediately prior
to the consummation of the transaction constituting the Change in Control
(regardless of whether such Service Option is at such time otherwise vested or
exercisable), (ii) each Performance Option outstanding immediately prior to the
consummation of the transaction constituting the Change in Control that shall
have become vested in accordance with Section 3(b) hereof prior to such time, if
any, and (iii) if any Performance Options have not become vested in accordance
with Section 3(b) prior to the date of the consummation of the transaction
constituting the Change in Control, the number of Performance Options equal to
the product of (x) the Applicable Percentage multiplied by (y) the total number
of Performance Options granted hereunder, such Applicable Percentage to be
determined as of the last day of the fiscal quarter of Worldwide ending
immediately prior to such date.
(c) Timing of Option Cancelation Payments; Discretionary
Acceleration. Notwithstanding the provisions of the preceding paragraphs (a) and
(b), the Board (as constituted immediately prior to the consummation of the
transaction constituting the Change in Control) may determine, in its
discretion, to accelerate the exercisability or cause the cancellation and
payment of an amount calculated as provided in Section 9(a) in respect of all or
any additional portion of the Performance Options.
18
Payment of the amount calculated in accordance with Section 9(a)
shall be made in cash or, if determined by the Board (as constituted immediately
prior to the Change in Control), in shares of the common stock of the New
Employer having an aggregate fair market value equal to such amount and shall be
payable in full, as soon as reasonably practicable, but in no event later than
30 days, following the Change in Control. For purposes hereof, the fair market
value of a share of common stock of the New Employer shall be determined by the
Board (as constituted immediately prior to the consummation of the transaction
constituting the Change in Control), in good faith, on the basis of the factors
described in the definition of the term "fair market value" contained in Section
1(y), other than an Applicable Share Valuation, as applied to the business,
operations and financial results of the New Employer and its subsidiaries and
applicable affiliates.
(d) Alternative Options. Notwithstanding Sections 9(a), 9(b) and
9(c), no cancellation, termination, acceleration of exercisability or vesting or
settlement or other payment shall occur with respect to any Option, including
any Included Option, if the Board (as constituted immediately prior to the
consummation of the transaction constituting the Change in Control) reasonably
determines, in good faith, prior to the Change in Control that the Options shall
be honored or assumed, or new rights substituted therefor (such honored, assumed
or substituted Option being hereinafter referred to as an "Alternative Option")
by the New Employer, provided that any Alternative Options must:
(i) provide the Grantee with rights and entitlements substantially
equivalent to or better than the rights and entitlements applicable
under the terms of the Options immediately prior to the consummation
of the transaction constituting the Change in Control, including,
but not limited to, an identical or better exercise and vesting
schedule and identical or better timing and methods of exercise or
payment;
(ii) have substantially equivalent economic value to the Options
(determined at the time of the Change in Control); and
(iii) have terms and conditions which provide that in the event that
the Grantee suffers an Involuntary Termination within two years
following a Change in Control:
(x) any conditions on the Grantee's rights under, or any
restrictions on transfer or exercisability applicable to, each
such Alternative Option shall be waived or shall lapse, as the
case may be; or
19
(y) the Grantee shall have the right to surrender such
Alternative Option within 30 days following such termination
in exchange for a payment in cash equal to the excess of the
fair market value of the common stock subject to the
Alternative Option over the price, if any, that the Grantee
would be required to pay to exercise such Alternative Option.
10. Certain Restrictions on Repurchases
(a) Financing Agreements, etc. Notwithstanding any other provision
of this Agreement, Worldwide shall not be obligated or permitted to pay the
purchase price for any Covered Options that Worldwide may elect to purchase from
the Grantee pursuant to Section 5(c) if (i) the payment of such purchase price
(or the payment of a dividend by a Subsidiary to Worldwide to fund such
repurchase) would result in a violation of the terms or provisions of, or result
in a default or an event of default under, any of (A) the Credit Agreement,
dated as of November 19, 1999 and amended as of November 23, 1999, among NAVL,
the Foreign Subsidiary Borrowers from time to time party thereto, the several
banks and financial institutions from time to time party thereto, The Bank of
New York, as documentation agent, Banc of America Securities LLC, as syndication
agent, and The Chase Manhattan Bank, as administrative agent, (B) the Indenture,
dated November 19, 1999, among NAVL, certain subsidiaries of NAVL, as
guarantors, and State Street Bank and Trust Company, as trustee, or (C) any
other guarantee, financing or security agreement or document entered into (1) by
Worldwide or any Subsidiary that remains outstanding in any part on or after the
date hereof, (2) from time to time in connection with the operations of
Worldwide or the Subsidiaries or (3) to refinance or replace any indebtedness
described in this Section 10(a) (the Credit Agreement, the Indenture and such
other agreements and documents, as each may be amended, modified or supplemented
from time to time, are referred to herein as the "Financing Agreements"), in
each case as the same may be amended, modified or supplemented from time to
time, (ii) the payment of such purchase price would violate any of the terms or
provisions of the Certificate of Incorporation of Worldwide or (iii) Worldwide
has no funds legally available therefor under the General Corporation Law of the
State of Delaware.
(b) Delay of Purchase. In the event that the payment of the purchase
price for any Covered Options by Worldwide otherwise permitted under Section
5(c) is prevented solely by the terms of Section 10(a), (i) the payment of such
purchase price will be postponed and will be made without the application of
further conditions or impediments (other than as set forth in Section 5 hereof
or in this Section 10) at the first opportunity thereafter when Worldwide has
funds legally available therefor and when the payment of such purchase price
will not result in any default, event of default or violation under any of the
Financing Agreements or in a violation of any term or provision of the
20
Certificate of Incorporation of Worldwide and (ii) the Grantee's right to
receive payment of such purchase price shall rank against other similar rights
with respect to shares of Common Stock or options in respect thereof according
to priority in time of the effective date of the event giving rise to any such
right, provided that any such right as to which a common date determines
priority shall be of equal priority and shall share pro rata in any purchase
payments made pursuant to clause (i) above.
(c) Purchase Price Adjustment. In the event that the payment of the
purchase price for any Covered Options purchased from the Grantee is delayed
pursuant to this Section 10, the purchase price for such Covered Options when
the purchase price is eventually paid as contemplated by Section 10(b) shall be
the sum of (a) the Purchase Price of such Covered Options, as determined in
accordance with Section 5(f) at the time that the Purchase Price would have been
paid but for the operation of this Section 10, plus (b) an amount equal to
interest on such Purchase Price for the period from the date on which the
Purchase Price would have been paid but for the operation of this Section 10 to
the date on which such Purchase Price is actually paid (the "Delay Period"), at
an annual rate of interest equal to the average annual cost to Worldwide and the
Subsidiaries of their bank indebtedness obligations outstanding during the
period that payment of a portion of the Purchase Price is delayed hereunder or,
if there are no such obligations outstanding, one percentage point greater than
the average annual prime rate charged during such period by Chase Bank or such
other nationally recognized bank designated by Worldwide.
11. No Rights as Stockholder. The Grantee shall have no voting or
other rights as a stockholder of Worldwide with respect to any Shares covered by
the Options until the exercise of the Options and the issuance of a certificate
or certificates to the Grantee for such Shares. No adjustment shall be made for
dividends or other rights for which the record date is prior to the issuance of
such certificate or certificates.
12. Capital Adjustments. The number and price of the Shares covered
by the Options shall be proportionately adjusted to reflect any stock dividend,
stock split or share combination of the Common Stock or any recapitalization of
Worldwide. Subject to any required action by the stockholders of Worldwide and
Section 9 hereof, in any merger, consolidation, reorganization, exchange of
shares, liquidation or dissolution, the Options shall pertain to the securities
and other property, if any, that a holder of the number of shares of Common
Stock covered by the Options would have been entitled to receive in connection
with such event.
21
13. Miscellaneous.
(a) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid, or by any recognized
international equivalent of such delivery, to Worldwide, the CD&R Fund or the
Grantee, as the case may be, at the following addresses or to such other address
as Worldwide, the CD&R Fund or the Grantee, as the case may be, shall specify by
notice to the others:
(i) if to Worldwide, to it at:
c/o North American Van Lines, Inc.
Law Department
0000 X.X. Xxxxxxx 00 Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
(ii) if to the Grantee, to the Grantee at the address set forth on
the signature page hereof.
(iii) if to the CD&R Fund, to:
Xxxxxxx, Dubilier & Rice Fund V Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, III
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally or on the third business day after the
mailing thereof, provided that the party giving such notice or communication
shall have attempted to telephone the party or parties to which notice is being
given during regular business hours on or before the day such notice or
communication is being sent, to advise such party or parties that such notice is
being sent. Copies of any notice or other communication given under this
Agreement shall also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
22
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
The CD&R Fund also shall be given a copy of any notice or other communication
between the Grantee and Worldwide under this Agreement at its address as set
forth above.
(b) Binding Effect; Benefits. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Except as provided in Section 5, nothing in this
Agreement, express or implied, is intended or shall be construed to give any
person other than the parties to this Agreement or their respective successors
or assigns any legal or equitable right, remedy or claim under or in respect of
any agreement or any provision contained herein.
(c) Waiver; Amendment.
(i) Waiver. Any party hereto or beneficiary hereof may by written
notice to the other parties (A) extend the time for the performance of any
of the obligations or other actions of the other parties under this
Agreement, (B) waive compliance with any of the conditions or covenants of
the other parties contained in this Agreement and (C) waive or modify
performance of any of the obligations of the other parties under this
Agreement, provided that any waiver of the provisions of Section 5 must be
consented to in writing by the CD&R Fund. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including,
without limitation, any investigation by or on behalf of any party or
beneficiary, shall be deemed to constitute a waiver by the party or
beneficiary taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by any
party hereto or beneficiary hereof of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any preceding
or succeeding breach and no failure by a party or beneficiary to exercise
any right or privilege hereunder shall be deemed a waiver of such party's
or beneficiary's rights or privileges hereunder or shall be deemed a
waiver of such party's or beneficiary's rights to exercise the same at any
subsequent time or times hereunder.
(ii) Amendment. This Agreement may not be amended, modified or
supplemented orally, but only by a written instrument executed by the
Grantee and Worldwide, and (in the case of any amendment, modification or
supplement
23
that adversely affects the rights of the CD&R Fund hereunder) consented to
by the CD&R Fund in writing. The parties hereto acknowledge that
Worldwide's consent to an amendment or modification of this Agreement may
be subject to the terms and provisions of the Financing Agreements.
(d) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by Worldwide or the Grantee without the prior written consent of the
other parties and the CD&R Fund. The CD&R Fund may assign from time to time all
or any portion of its rights under Section 5 to one or more persons or other
entities designated by it.
(e) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT THE CORPORATE LAW OF THE STATE OF DELAWARE SPECIFICALLY AND
MANDATORILY APPLIES.
(f) Section and Other Headings, etc. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(h) Delegation by the Board. All of the powers, duties and
responsibilities of the Board specified in this Agreement may, to the full
extent permitted by applicable law, be exercised and performed by any duly
constituted committee thereof to the extent authorized by the Board to exercise
and perform such powers, duties and responsibilities.
24
IN WITNESS WHEREOF, Worldwide and the Grantee have executed this
Agreement as of the date first above written.
ALLIED WORLDWIDE, INC.
By:______________________________________
Name:
Title:
THE GRANTEE:
Name
By:______________________________________
as Attorney-in-Fact
Name:
Address of the Grantee:
Address
Service Options Performance Options
--------------- -------------------
Total Number of Shares for Shares Shares
the Purchase of Which
Options have been Granted
