1
Exhibit 10.5
FORM OF
EXECUTIVE AGREEMENT
THIS AGREEMENT is made as of June 28, 2001 among TransWestern
Holdings, L.P., a Delaware limited partnership (the "Partnership"), TransWestern
Communications Company, Inc., a Delaware corporation (the "Company"),
________________________1 ("Executive").
Trust and Executive are parties to a Recapitalization Agreement,
dated as of June 28, 2001 (as amended from time to time, the "Recapitalization
Agreement"), pursuant to which it acquired certain Preferred Units of the
Partnership ("Preferred Units") and Class A Units of the Partnership ("Class A
Units"). The Partnership, the Company, Trust and Executive desire to enter into
this Agreement pursuant to which Trust will purchase from the Partnership, and
the Partnership will sell to Trust certain Class B Units of the Partnership
("Class B Units"). The Preferred Units, the Class A Units, the Class B Units and
the shares of common stock of the Company ("Shares") issued to Trust hereunder
or pursuant to the Recapitalization Agreement or otherwise acquired by Trust are
referred to herein as the "Executive Securities." Certain definitions are set
forth in paragraph 8 of this Agreement.
The parties hereto agree as follows:
1. Purchase and Sale of Executive Securities.
(a) Upon execution of this Agreement, Trust will purchase, and
the Partnership will sell 526.17 Class B Units at a purchase price of $1.00 per
Unit for a total purchase price of $526.17. The Partnership will amend its books
and records and make all appropriate notations to reflect the issuance of such
Units to Trust and will deliver certificates to Trust representing the Units
purchased hereunder, and Trust will deliver to the Partnership a cashier's or
certified check or wire transfer of funds in the aggregate amount of $526.17.
(b) Within 30 days after Trust purchases any Executive Securities
from the Partnership, Trust will make an effective election with the Internal
Revenue Service under Section 83(b) of the Internal Revenue Code and the
regulations promulgated thereunder substantially in the form of Exhibit A
attached hereto.
(c) In connection with the purchase and sale of the Executive
Securities hereunder, Trust and Executive represent and warrant to the
Partnership that:
1 Executive Agreements have been entered into with each of the following
Executives: Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx X. Xxxxx and Xxxxx X. Xxxxx
Living Trust and Xxxxxxxx X. Xxxxx, Xxxxx Xxxxx Trust and Xxxxxxxx X. Xxxxx,
Xxxxxxx Xxxxx Trust and Xxxxxxxx X. Xxxxx, Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx
Trust and Xxxxxxxx Xxxxxxx, Xxxxxxx & Xxxxxxx Xxxxx Living Trust and Xxxxxxx
Xxxxx, Rock Xxxx, Xxxxxxx Xxxxxx, Xxxxxx X. XxXxxxx, Xxxxx X. Xxxxxxx, Xxxx X.
Xxxxxxxx, Xxxxxxx Family Trust and Xxxx Xxxxxxx, Xxxxxx X. Xxxxx, Xx., Xxxxx
Xxxxxxx, Xxx/Xxxxxxxx Family Trust and Xxxxxxx Xxxxxxxx, Xxxx Xxxxxxx, Xxxxx X.
Xxxxxxxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx X. Xxxx, Xxxxxxx Xxxxxx, W. Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx
xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxx Living Trust and Xxxxxxx Xxxxxx, Xxxxxxx
Xxxxxx 1995 Trust and Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Ita
Xxxx-Xxxxxxx Xxxxx Xxxxxx, Xxxx X. Xxxxxxxx, Xxx Xxxxxxx, Bar Xxxx Xxxxxx III
and Xxxx Xxxx Suster Family Trust and Xxxx Xxxx Suster and Xxxxxxxx X. Xxxxx
Trust and Xxxxxxxx Xxxxx
2
(i) The Executive Securities to be acquired by Trust
pursuant to this Agreement will be acquired for Trust's own account and
not with a view to, or intention of, distribution thereof in violation
of the 1933 Act, or any applicable state securities laws, and the
Executive Securities will not be disposed of in contravention of the
1933 Act or any applicable state securities laws.
(ii) Executive is an executive officer of the Partnership,
or its subsidiaries, TransWestern Publishing Company, a Delaware limited
liability company (the "LLC") is sophisticated in financial matters and
is able to evaluate the risks and benefits of the investment in the
Executive Securities.
(iii) Trust is able to bear the economic risk of its
investment in the Executive Securities for an indefinite period of time
because the Executive Securities have not been registered under the 1933
Act and, therefore, cannot be sold unless subsequently registered under
the 1933 Act or an exemption from such registration is available.
(iv) Each of Executive and Trust has had an opportunity to
ask questions and receive answers concerning the terms and conditions of
the offering of Executive Securities and has had full access to such
other information concerning the Partnership as he or it has requested.
Each of Executive and Trust has reviewed, or has had an opportunity to
review, a copy of the Fourth Amended and Restated Agreement of Limited
Partnership, dated as of the date hereof, between the General Partner
and the Limited Partners listed on Schedule I thereto, and each of
Executive and Trust is familiar with the terms and conditions with
respect to the Class B Units, as described therein.
(v) This Agreement constitutes the legal, valid and
binding obligation of Executive and Trust, enforceable in accordance
with its terms, and the execution, delivery and performance of this
Agreement by Executive and Trust do not and will not conflict with or
violate or cause a breach of any agreement, contract or instrument to
which Executive or Trust is a party or any judgment, order or decree to
which Executive or Trust is subject.
(d) As an inducement to the Partnership to issue to Trust the
Executive Securities being issued hereunder and as a condition thereto,
Executive and Trust acknowledges and agrees that:
(i) neither the issuance of the Executive Securities
hereunder to Trust nor any provision contained herein shall entitle
Executive to remain in the employment of the General Partner, the
Partnership or the LLC or affect the right of the General Partner or the
Partnership to terminate Executive's employment at any time for any
reason; and
(ii) the Partnership shall have no duty or obligation to
disclose to Executive or Trust, and neither Executive or Trust shall
have any right to be advised of, any material information regarding the
Partnership at any time prior to, upon or in connection with the
repurchase of Executive Securities following the termination of
Executive's employment with the General Partner and the Partnership or
as otherwise provided
-2-
3
hereunder.
2. Vesting of Class B Units.
(a) Except as otherwise provided in paragraph 2(b) below, the
Class B Units purchased hereunder will become vested in accordance with the
following schedule, if as of each such Anniversary Date, Executive is and has
continued to be employed by the General Partner, the Partnership or the LLC:
Cumulative Percentage
Anniversary of Class B Units
Date that are Vested Class B Units
---------- ------------------------------
6/30/2002 25%
6/30/2003 50%
6/30/2004 75%
6/30/2005 100%
(b) Upon the Sale of the Partnership, all Class B Units which
have not yet become vested in accordance with the foregoing vesting schedule
shall become vested at the time of such Sale of the Partnership. Class B Units
which have become vested hereunder are referred to herein as "Vested Class B
Units," and all other Class B Units are referred to herein as "Unvested Class B
Units."
3. Call Option.
(a) In the event that the employment of Executive is terminated
(a "Termination") (i) for any reason, all of the Vested Class B Units (whether
held by Executive, Trust or one or more of Executive's or Trust's Permitted
Transferees) shall be subject to repurchase by the Partnership and the Investors
pursuant to the terms and conditions set forth in this paragraph 3 or (ii) for
Cause, all Executive Securities (whether held by Executive, Trust or one or more
of Executive's or Trust's Permitted Transferees) will be subject to repurchase
by the Partnership or the Company, as applicable, and the Investors pursuant to
the terms and conditions set forth in this paragraph 3 (the right to repurchase
securities pursuant to this paragraph 3(a) being referred to as the "Repurchase
Option"). In the event of a Termination for any reason, all Unvested Class B
Units will be forfeited to the Partnership and deemed canceled without
consideration.
(b) The purchase price for each Executive Security will be the
Fair Market Value for such Executive Security.
(c) The Partnership and the Company may elect to exercise the
Repurchase Option and purchase all or any portion of the Executive Securities
then subject to the Repurchase Option by delivering written notice (the
"Repurchase Notice") to the holder or holders of the Executive Securities within
ninety (90) days after a Termination. The Repurchase Notice will set forth the
number of Executive Securities to be acquired from the Trust and each Permitted
-3-
4
Transferee then holding Executive Securities, the aggregate consideration to be
paid for such Executive Securities and the time and place for the closing of the
transaction. The number of Executive Securities to be repurchased by the
Partnership and the Company shall first be satisfied to the extent possible from
the Executive Securities held by Executive at the time of delivery of the
Repurchase Notice and then from the Executive Securities held by Trust at the
time of delivery of the Repurchase Notice. If the number of Executive Securities
then held by Executive and Trust is less than the total number of Executive
Securities the Partnership and the Company has elected to purchase, the
Partnership and the Company shall purchase the remaining Executive Securities
elected to be purchased under this paragraph 3 from one or more of Executive's
and/or Trust's Permitted Transferees then holding Executive Securities
originally purchased by Trust, pro rata according to the number of Executive
Securities held by such other holder(s), respectively, at the time of delivery
of such Repurchase Notice (determined as nearly as practicable to the nearest
Unit or Share, as applicable).
(d) If for any reason the Partnership and the Company do not
elect to purchase all of the Executive Securities pursuant to the Repurchase
Option, the Investors shall be entitled to exercise the Repurchase Option for
the Executive Securities the Partnership and the Company have not elected to
purchase (the "Available Securities"). As soon as practicable after the
Partnership and the Company have determined that there will be Available
Securities, but in any event within 45 days after the Termination, the
Partnership and the Company shall give written notice (the "Option Notice") to
the Investors setting forth the number of Available Securities and the purchase
price for the Available Securities. The Investors may elect to purchase any or
all of the Available Securities by giving written notice to the Partnership
within 30 days after the Option Notice has been given by the Partnership and the
Company. If the Investors elect to purchase an aggregate number of Executive
Securities greater than the number of Available Securities, the Available
Securities shall be allocated among the Investors based upon the number of Units
owned by each Investor on a fully-diluted basis. As soon as practicable, and in
any event within ten days after the expiration of the 30-day period set forth
above, the Partnership and the Company shall notify each holder of Executive
Securities as to the number of Executive Securities to be purchased from such
holder by the Investors and the time and place for the closing of the
transaction (the "Supplemental Repurchase Notice"). At the time the Partnership
and the Company deliver the Supplemental Repurchase Notice to such holder(s) of
Executive Securities, the Partnership shall also deliver written notice to the
Investors setting forth the number of Executive Securities such Investors are
entitled to purchase, the aggregate purchase price and the time and place of the
closing of the transaction.
(e) The closing of the purchase of the Executive Securities
pursuant to the Repurchase Option shall take place on the date designated by the
Partnership and the Company in the Repurchase Notice or Supplemental Repurchase
Notice, which date shall not be more than 60 days nor less than five days after
the delivery of the later of either such notice to be delivered, subject to the
provisions of paragraph 3(g). The Partnership and the Company and/or the
Investors will pay for the Executive Securities to be purchased pursuant to the
Repurchase Option by delivery of (i) a check or wire transfer of funds, (ii) a
subordinated note or notes payable in up to three equal annual installments,
beginning on the first anniversary of the closing of such purchase, and bearing
interest (payable quarterly) at a rate per annum equal to the prime rate
announced from time to time by Canadian Imperial Bank of Commerce but in no
event will such rate be less than the applicable
-4-
5
federal rate in effect at such time or (iii) both (i) and (ii), in the aggregate
amount of the purchase price for such Executive Securities. The purchasers of
Executive Securities under this Section 3 will be entitled to receive customary
representations and warranties from the sellers regarding such sale and to
require all sellers' signatures be guaranteed.
(f) The right of the Partnership and the Company and the
Investors to repurchase Executive Securities pursuant to this paragraph 3 shall
terminate upon the first to occur of the Sale of the Partnership or a Qualified
Public Offering.
(g) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Executive Securities by the Partnership and the
Company shall be subject to applicable restrictions contained in the Delaware
Revised Uniform Limited Partnership Act, the Delaware General Corporation Law
and the Partnership's, the LLC's and the Company's equity or debt financing
agreements as in effect on the date hereof. If any such restrictions prohibit
the repurchase for cash of Executive Securities hereunder which the Partnership
or the Company, as applicable, is otherwise entitled or required to make or
prohibit payments on the subordinated note described in subparagraph (e) above,
the Partnership, the LLC or the Company, as applicable, will use reasonable best
efforts to obtain the waiver of such restrictions, shall not be obligated to
repurchase such Executive Securities for cash or to make cash payments on such
notes until not so prohibited from doing so and shall make such repurchases for
cash or make cash payments on such notes, as applicable, as soon as it is
permitted to do so under such restrictions.
4. Restrictions on Transfers.
(a) Transfer of Executive Securities. Neither Executive nor Trust
will sell, transfer, assign, pledge be redeemed, have purchased or otherwise
dispose of (a "Transfer") any interest in any Executive Securities, except
pursuant to (i) the provisions of paragraph 3 hereof, (ii) the provisions of
paragraph 4(b) below, (iii) the provisions of the Investors Agreement, or (iv)
pursuant to the Registration Agreement.
(b) Certain Permitted Transfers. The restrictions contained in
this paragraph 4 will not apply with respect to transfers of Executive
Securities pursuant to applicable laws of descent and distribution, provided
that the restrictions contained in this paragraph 4 will continue to be
applicable to the Executive Securities after any such transfer and the
transferees of such Executive Securities shall agree in writing to be bound by
the provisions of this Agreement. Any transferee of Executive Securities
pursuant to a transfer in accordance with the provisions of this paragraph 4 is
herein referred to as a "Permitted Transferee." Upon the transfer of Executive
Securities pursuant to this paragraph 4(b), the Permitted Transferee(s) will
deliver a written notice (the "Transfer Notice") to the Partnership. The
Transfer Notice will disclose in reasonable detail the identity of the Permitted
Transferee(s).
-5-
6
5. Additional Restrictions on Transfer.
(a) The certificates (if any) representing the Executive
Securities will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION
FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS
SET FORTH IN AN EXECUTIVE AGREEMENT BETWEEN THE ISSUER (THE
"COMPANY"), A CERTAIN TRUST AND A CERTAIN EMPLOYEE OF THE COMPANY
DATED AS OF JUNE 28, 2001, A COPY OF WHICH MAY BE OBTAINED BY THE
HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS
WITHOUT CHARGE."
(b) No holder of Executive Securities may sell, transfer or
dispose of any Executive Securities (except pursuant to an effective
registration statement under the 1933 Act) without first delivering to the
Partnership an opinion of counsel reasonably acceptable in form and substance to
the Partnership (and which counsel shall be reasonably acceptable to the
Partnership) that registration under the 1933 Act is not required in connection
with such transfer.
6. Definition of Executive Securities. For purposes of this
Agreement, Executive Securities will continue to be Executive Securities in the
hands of any holder other than Trust (except for the Partnership, the Investors
and purchasers pursuant to an offering registered under the 1933 Act or
purchasers pursuant to a Rule 144 transaction), and each such other holder of
Executive Securities will succeed to all rights and obligations attributable to
Trust as a holder of Executive Securities hereunder. Executive Securities will
also include partnership equity interests issued with respect to Executive
Securities by way of a split, distribution or other recapitalization.
7. Investors Agreement and Registration Agreement; Conversion In
Connection With Public Offering . By execution of this Agreement, each holder of
Executive Securities hereby agrees to become a party to the Investors Agreement
and become subject to the terms and provisions thereof. By execution of this
Agreement, each holder of Executive Securities hereby agrees to become a party
to the Registration Agreement and become subject to the terms and provisions
thereof. In connection with an initial public offering of equity securities of
the Partnership (or any corporate successor thereto, including any entity the
securities of which Executive has received in any Approved Corporate Conversion
effected pursuant to Section 15.4 of the Partnership Agreement (a "Corporate
Successor")), each holder of Class B Units hereby agrees to vote for,
participate in and take all steps necessary to consummate, a plan or
reorganization of the Partnership (or any Corporate
-6-
7
Successor thereto), including if necessary, agreeing to an amendment to such
entity's charter documents, pursuant to which Class B Units will be exchanged
for or converted into other securities of the Partnership (or any Corporate
Successor thereto) in a ratio based on the value the Class B Units would have if
the Partnership (or any Corporate Successor thereto) was sold for an amount
equal to its enterprise value (which shall be determined by the General Partner
(or the board of directors or similar governing body of any Corporate Successor)
based upon the initial public offering price of such entity's common securities)
and the proceeds (after paying the liabilities of such entity) were distributed
to its equity holders.
8. Definitions. Capitalized terms used and not otherwise defined
herein have the meanings set forth in the Recapitalization Agreement.
"Cause" means (i) the commission of a felony or a crime involving
moral turpitude or the commission of any other act involving dishonesty,
disloyalty or fraud with respect to the Partnership or any of its Subsidiaries,
(ii) conduct tending to bring the Partnership or any of its Subsidiaries into
substantial public disgrace or disrepute, (iii) substantial and repeated failure
to perform duties as reasonably directed by the General Partner, (iv) gross
negligence or willful misconduct with respect to the Partnership or any of its
Subsidiaries, or (v) any other material breach of this Agreement which is not
cured within 15 days after written notice thereof to Executive.
"Fair Market Value" of each Unit or share of capital stock or
other type of Executive Security means the average of the closing prices of the
sales of any such security on all securities exchanges on which such security
may at the time be listed, or, if there have been no sales on any such exchange
on any day, the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day such security is not so
listed, the average of the representative bid and asked prices quoted in the
Nasdaq Stock Market as of 4:00 P.M., New York time, or, if on any day such
security is not quoted in the Nasdaq Stock Market, the average of the highest
bid and lowest asked prices on such day in the domestic over-the-counter market
as reported by the National Quotation Bureau Incorporated, or any similar
successor organization, in each such case averaged over a period of 21 days
consisting of the day as of which the Fair Market Value is being determined and
the 20 consecutive business days prior to such day.
With respect to any Unit or other share of capital stock or other
type of Executive Security which is not, as of the date of determination, listed
on any securities exchange or quoted in the Nasdaq Stock Market or the
over-the-counter market, the Fair Market Value thereof shall be the fair value
of such Unit or share or other type of Executive Security, as the case may be,
determined in good faith by the Board. In the event Trust disagrees with the
Board's determination of Fair Market Value, then the Board and Trust shall use
their best efforts to resolve such disagreement. If the Board and Trust are
unable to resolve such disagreement, then the Board shall identify a nationally
recognized appraiser (the "Board Appraiser") and Trust shall identify a
nationally recognized appraiser (the "Trust Appraiser"), and the Board Appraiser
and the Trust Appraiser shall select a third appraiser to determine the Fair
Market Value (the "Appraiser") whose determination shall be final and binding on
the parties hereto. The Appraiser shall allocate its costs and expenses between
the Partnership, on the one hand, and Trust and the Executive, on the other
hand, based upon the percentage which the portion of the contested amount not
awarded to the
-7-
8
Partnership, on the one hand, or the Trust, on the other hand, as the case may
be, bears to the amount actually contested by such party.
"General Partner" means TransWestern Communications Company, Inc.
(or its successors or assigns), in its capacity as the general partner of the
Partnership.
"Investors" means, collectively, CIVC (as defined in the Investors
Agreement), Providence (as defined in the Investors Agreement) and the THL
Investors (as defined in the Investors Agreement).
"Investors Agreement" means that certain Amended and Restated
Investors Agreement, dated as of the date hereof, by and among the Partnership,
the General Partner and those certain partners and stockholders thereof, as
amended or modified.
"1933 Act" means the Securities Act of 1933, as amended from time
to time.
"Partnership Agreement" means the Fourth Amended and Restated
Agreement of Limited Partnership, dated as of the date hereof, by and among the
General Partner and the limited partners listed on Schedule I attached thereto
(as may be amended or restated from time to time).
"Permitted Transferee" has the meaning given to such term in
paragraph 5(b).
"Qualified Public Offering" has the meaning given to such term in
the Investors Agreement.
"Sale of the Partnership" has the meaning given to such term in
the Investors Agreement.
"Subsidiary" means, with respect to any person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that person or one or more of the other
Subsidiaries of that person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any person or one or more
Subsidiaries of that person or a combination thereof. For purposes hereof, a
person or persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such person or persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Unit" has the meaning given to such term in the Partnership
Agreement.
-8-
9
9. Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated: To the Partnership:
TransWestern Holdings, L.P.
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X Xxxxxx
X. Xxxxxx Xxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, P.C.
To Trust and/or Executive:
Xxxx Xxxxxxx
TransWestern Publishing Company, L.L.C.
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxx Xxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
10. General Provisions.
(a) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Executive Securities in violation of any provision of this
Agreement shall be void, and the Partnership shall not record such Transfer on
its books or treat any purported transferee of such Executive Securities as the
owner of such Executive Securities for any purpose.
(b) Executive Time and Attention. So long as Executive is employed
by the Partnership, Executive shall devote such Executive's full business time
and attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Partnership and
its Subsidiaries. Executive shall perform such Executive's duties and
responsibilities to the best of such Executive's abilities in a diligent,
trustworthy, businesslike and efficient manner.
-9-
10
(c) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(e) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(f) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by
Executive, Trust, the Partnership, the Investors and their respective successors
and assigns (including subsequent holders of Executive Securities); provided
that the rights and obligations of Trust under this Agreement shall not be
assignable except in connection with a permitted transfer of Executive
Securities hereunder.
(g) Choice of Law. The limited partnership law of the State of
Delaware will govern all questions concerning the relative rights of the
Partnership and its partners and all questions concerning the construction,
validity and interpretation of this Agreement.
(h) Remedies. Each of the parties to this Agreement (including the
Investors) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including reasonable attorney's
fees) caused by any breach of any provision of this Agreement and to exercise
all other rights existing in its favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply
to any court of law or equity of competent jurisdiction (without posting any
bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company, the
Partnership, Trust, Executive and the Investors (as third party beneficiaries
hereof).
(j) Absence of Conflicting Agreements. Executive hereby warrants
and covenants that his employment by the Partnership does not result in a breach
of the terms, conditions
-10-
11
or provisions of any agreement to which Executive is subject and Executive and
Trust warrant that Trust's ownership of the Executive Securities does not result
in a breach of the terms, conditions or provisions of any agreement to which
Trust or Executive is subject.
(k) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Partnership's chief executive office is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or holiday.
(l) Third Party Beneficiaries. The parties hereto acknowledge and
agree that the Investors are third party beneficiaries of this Agreement and
this Agreement shall inure to the benefit of and be enforceable by the Investors
and their respective successors and assigns.
* * * * *
-11-
12
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
TRANSWESTERN HOLDINGS, L.P.
By TransWestern Communications Company, Inc.
Its General Partner
By
------------------------------------
Its
----------------------------------
EXECUTIVE:
---------------------------------------
Name:
[TRUST:
By
------------------------------------
Its ]
----------------------------------
(SIGNATURE PAGE TO EXECUTIVE AGREEMENT)
