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Exhibit 4.4
RESTRICTED STOCK PURCHASE AGREEMENT
dated as of
January 2, 1997
between
FIBERITE HOLDINGS, INC.
and
XXXXX X. XXXXXX
2
This Agreement is made as of the 2nd day of January, 1997
between Fiberite Holdings, Inc., a Delaware corporation (the "Company"), and
Xxxxx X. Xxxxxx (the "Purchaser"). This Agreement is that certain Restricted
Stock Purchase Agreement referred to in that certain Incentive Stock Option
Agreement dated as of September 26, 1996 between the Company and the Purchaser
(the "Option Agreement").
In consideration of the agreements set forth below, the
Company and Purchaser agree as follows:
SECTION 1.
(a) Definitions. The following terms have the meanings set
forth below:
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by or is under
common control with such Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this agreement, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"As Adjusted" means (i) if the Company at any time subdivides
(by any stock split, stock dividend, recapitalization or otherwise) the Common
Stock into a greater number of shares or pays a dividend or makes a distribution
to holders of the Common Stock in the form of shares of Common Stock, the number
of Shares referred to shall be proportionately increased; and (ii) if the
Company at any time combines (by reverse stock split or otherwise) the Common
Stock into a smaller number of shares, the number of Shares referred to shall be
proportionately decreased.
"Board of Directors" means the board of directors of the
Company.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in the City of New York are authorized or
required by law to close.
"Change of Control" means (i) a Change of Control as such term
is defined in the Credit Agreement, (ii) the sale of all or substantially all of
the assets of the Company or (iii) an Initial Public Offering in which the
Institutional Shareholders, after such offering, own in the aggregate less than
50% of the outstanding Common Stock.
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"Closing" has the meaning set forth in Section 2.
"Commission" means the Securities and Exchange Commission.
"Credit Agreement" means the Credit Agreement dated October 6,
1995, among the Company, Fiberite, the lenders listed therein and Bank of
America National Trust and Savings Association, as Agent (in such capacity, the
"Agent"), as amended, supplemented or otherwise modified from time to time.
References to the Credit Agreement shall also include any credit agreement or
agreements entered into by the Company and/or Fiberite to replace, extend,
increase, renew, refund or refinance all or a portion of the debt or other
obligations under the Finance Documents.
"EBITDA" means, for any computation period, the sum of
(a) Consolidated Net Income (as defined in the Credit
Agreement) of the Company for such period excluding, to the extent reflected in
determining such Consolidated Net Income, extraordinary gains and losses for
such period and non-cash or non-recurring charges related to plant
consolidations or restructurings, and
(b) To the extent deducted in determining Consolidated Net
Income, Interest Expense (as defined in the Credit Agreement), income tax
expense, depreciation, depletion and amortization for such period.
"Equity Proceeds" means the aggregate cash proceeds (net of
the direct costs of any such sale or other disposition (including, without
limitation, sales and underwriters' commissions and legal, accounting and
investment banking fees)) received by all Institutional Shareholders in exchange
for or in a distribution or dividend based upon Holdings Shares (As Adjusted)
and Notes that, in each case, were issued and outstanding on October 6, 1995
from the sale, exchange, conversion or other disposition of Holdings Shares and
Notes (including upon repayment of such Notes) or from a dividend or other
distribution to the holders of such Shares and Notes from October 6, 1995 to the
date of determination; provided that upon the occurrence of a Change of Control,
for purposes of this Agreement, the term Equity Proceeds shall be deemed to
include, in addition to the cash proceeds described above, the aggregate
non-cash proceeds (net of the costs outlined above) received by all
Institutional Shareholders in exchange for, or from a dividend or other
distribution based upon, Holdings shares (As Adjusted) and Notes that, in each
case, were issued and outstanding on October 6, 1995 from the sale or other
disposition of Holdings Shares (As Adjusted) and Notes (including upon repayment
of such Notes) from October 6, 1995 to and including the date of such Change of
Control, less any fees and expenses incurred by such parties in connection with
such sales or other dispositions. In the case of any non-cash proceeds, such
non-cash proceeds shall be valued at the fair value thereof as reasonably
determined by the Board of Directors as of the consummation of such sale or
disposition, irrespective of any accounting treatment. In no event shall any
proceeds received in a sale, exchange, conversion or other disposition with or
to a Permitted Transferee of an Institutional Shareholder or,
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to the extent such proceeds are other than cash, with or to the Company or
Fiberite, be included in any calculation of Equity Proceeds hereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fiberite" means Fiberite, Inc., a Delaware corporation.
"Finance Documents" means the Credit Agreement together with
all notes, collateral and security documents, guaranties (including the guaranty
of the Company thereunder) and other documents delivered at any time in
connection therewith, all as amended, supplemented or otherwise modified from
time to time in accordance with their respective terms.
"Financing Lease" means any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with generally accepted accounting principles to be capitalized on a
balance sheet of the lessee.
"Fiscal Year" means a fiscal year of the Company.
"GmbH" means Fiberite Europe GmbH, a German GmbH.
"Holder" means any holder from time to time of any Shares.
"Holdings Corporate Documents" means the certificate of
incorporation and by-laws of the Company.
"Holdings Shares" means shares of common stock of the Company,
par value $0.01 per share.
"Initial Public Offering" has the meaning ascribed to such
term in the Shareholders Agreement.
"Institutional Shareholder" has the meaning ascribed to such
term in the Shareholders Agreement.
"Institutional Shareholder Valuation" means, for any date of
calculation, the sum of
(a) the Equity Proceeds on such date plus, without
duplication, the value of all non-cash Equity Proceeds determined in accordance
with the second sentence or the proviso of the first sentence of the definition
of Equity Proceeds, without regard to whether a Change of Control has occurred;
and
(b) the product of
(A) the per share cash proceeds (net of the direct
costs of the applicable Public Offering (including, without limitation, sales
and underwriters'
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commissions and legal, accounting and investment banking fees)) received by all
Institutional Shareholders in the Public Offering with respect to which this
calculation is made, multiplied by
(B) the number of Holdings Shares that were issued,
outstanding and held by Institutional Shareholders on October 6, 1995 (As
Adjusted) less the number of any such Holdings Shares for which Equity Proceeds
are included in (a) above; and
(c) the amount of principal and accrued interest on all Notes
outstanding as of the date this calculation was made.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations or financial condition of the Company and its
subsidiaries taken as a whole or (b) the enforceability of any of the Securities
Documents.
"Notes" means the Company's 11.30% Subordinated Notes due
2002.
"Permitted Transferee" has the meaning ascribed to such term
in the Shareholders Agreement.
"Person" means an individual or a corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or any agency or
political subdivision thereof) or other entity of any kind.
"Pledge Agreement" has the meaning set forth in Section 2(b).
"Promissory Note" has the meaning set forth in Section 2(a).
"Public Offering" has the meaning ascribed to such term in the
Shareholders Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Documents" means this Agreement, the Shareholders
Agreement, the Shares, the Promissory Note and the Pledge Agreement.
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"Shareholders Agreement" means the Shareholders Agreement
dated as of October 6, 1995 among the Company and the other shareholders as
signatory thereto, as amended or modified pursuant to the terms thereof.
"Shares" has the meaning set forth in Section 2(a).
"subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of the capital stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
"Time of Purchase" has the meaning set forth in Section 2(a).
"Transfer" means any disposition of Shares that would
constitute a sale thereof under the Securities Act.
"Vesting Percentage" means, for any date of calculation, the
ratio of:
(a) the number of Holdings Shares which were issued,
outstanding and held by the DLJ Entities on October 5, 1995 (As Adjusted) which
were sold in the Public Offering with respect to which this calculation is made,
divided by
(b) the number of Holdings Shares that were issued,
outstanding and held by the DLJ Entities on October 6, 1995 (As Adjusted).
(b) Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, as applied on a consistent basis (except for changes concurred in by
the Company's independent public accountants). For purposes of this Agreement,
references to assets, liabilities, revenues, costs or other similar items
relating to the Company, Fiberite or any of their subsidiaries shall be deemed
to include, with respect to any joint operating agreement or partnership
agreement to which the Company, Fiberite or such subsidiary is a party, such
portion, but only such portion, of the assets, liabilities, revenues, costs or
other similar items covered by such joint operating agreement or partnership
agreement as shall equal the then proportional interest of the Company, Fiberite
or such subsidiary under such joint operating agreement or partnership
agreement, determined, where applicable, in accordance with the rules for
proportionate consolidation in accordance with generally accepted accounting
principles.
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SECTION 2. Sale to Purchaser.
(a) Purchase and Sale of Stock. Subject to the terms and
conditions hereof and the Shareholders Agreement, the Company agrees from time
to time to sell to Purchaser, and Purchaser agrees to purchase from time to time
from the Company, up to an aggregate of 406,000 shares (the "Shares") of Common
Stock of the Company, par value $0.01 per share ("Common Stock"), at the
aggregate price of $203,000.00 ($0.50 per share). Each purchase and sale
hereunder shall be deemed consummated (each such consummation, a "Closing") at
the date set forth on a notice of exercise delivered pursuant to the terms of
the Option Agreement (an "Exercise Notice") (such time of purchase and sale, the
"Time of Purchase"). As soon as practicable following each Closing, the Company
shall deliver a certificate representing that number of Shares specified in the
Exercise Notice, registered in the name of Purchaser. Purchaser shall
concurrently with the Exercise Notice deliver payment for the Shares subject to
the Exercise Notice in the form of cash, a promissory note in the form attached
hereto as Exhibit A ("Promissory Note"), or other consideration approved by the
Board. Each of Purchaser and the Company acknowledges that the Shares are
subject to the terms and conditions contained herein and in the Shareholders
Agreement and that each Holder of a Share is bound by such terms and conditions.
In the event Optionee elects to exercise the Incentive Stock Option for a number
of Shares less than the aggregate number of Shares subject to this Option then
(i) the total number of shares identified in the Exercise Notice shall be
apportioned ratably among Time Based Shares, Performance Based Shares, Exit
Shares and Bonus Shares in proportion to the total number of each category of
such shares identified in Schedule A attached hereto; and (ii) number of issued
and outstanding Shares shall be reflected on an updated Schedule A prepared and
initialed by the parties hereto at the applicable Closing.
(b) Financing. To secure the obligations of Purchaser under
any Promissory Note, Purchaser will enter into a pledge agreement (the "Pledge
Agreement") in the form of Exhibit B hereto.
SECTION 3. Vesting. No Share shall vest until the vesting
criteria set forth in this Section 3 with respect to such Share shall have
occurred. Purchaser may not sell, transfer, pledge, hypothecate or otherwise
encumber (except pursuant to the Pledge Agreement) any Shares prior to October
6, 2005, unless (i) such Shares have vested pursuant to this Section 3 and (ii)
at the time of such vesting the Purchaser is an employee of the Company or any
of its subsidiaries. In addition to the vesting criteria set forth below, no
share shall vest until (i) all interest then due and payable under any
Promissory Note used to purchase such Share has been paid; (ii) the aggregate of
all principal amounts of the Promissory Note used to purchase such Share paid
from the date of such Promissory Note through the date of satisfaction of the
other vesting criteria established hereunder with respect to such Share equals
or exceeds the product of (A) the total number of Shares purchased with such
Promissory Note which have (or, but for the application of this sentence, would
have) vested hereunder and (B) $.49; (iii) the portion of any accrued and unpaid
interest attributable to the principal amounts referred to in the preceding
clause (ii) have been paid; and (iv) each other obligation of Purchaser under
the Promissory Note used to purchase such Share (which obligation is required to
be satisfied at or prior to the time of any such vesting) is satisfied.
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(a) Time Based Vesting. (i) The number of Shares listed on
Schedule A as Time Based Shares ("Time Based Shares") shall vest and become
(whether or not such Shares have been exercised pursuant to the Option
Agreement) only in accordance with Section 3(a)(ii) and with the following
schedule:
Vesting Amount (percentage of Time
Vesting Date Based Shares Vesting on such date)
----------------- ----------------------------------
December 31, 1996 25%
December 31, 1997 25%
December 31, 1998 25%
December 31, 1999 25%
(ii) If a Change of Control shall occur, then any Time
Based Shares that have not vested as of such date shall be deemed to vest
immediately prior to such Change of Control (whether or not such Shares have
been exercised pursuant to the Option Agreement).
(b) Performance Based Vesting.
(i) The number of Shares listed on Schedule A as
Performance Based Shares ("Performance Based Shares") shall vest (whether or
not such Shares have been exercised pursuant to the Option Agreement) on
October 6, 2005. Provided, however, for each period listed below, if EBITDA is
equal to or above the amount listed beside such period on the chart below
(each such amount, a "Target EBITDA") then 25% of the Performance Based Shares
(for each such period, "Target Shares") shall vest earlier as follows:
Fiscal Year ending Target EBITDA
------------------ -------------
December 31, 1996 $25,900,000
December 31, 1997 $29,700,000
December 31, 1998 $34,000,000
December 31, 1999 $37,000,000
provided further, that if EBITDA for a period is less than the Target EBITDA for
such period, but is greater than 85% of the Target EBITDA for such period, then
the number of Performance Based Shares that shall vest for such period shall be
calculated as follows:
EBITDA - (.85) (Target EBITDA)
Target Shares x -------------------------------------
Target EBITDA - (.85) (Target EBITDA)
provided further, that the amount of EBITDA for a Fiscal Year in excess of the
Target EBITDA for such Fiscal Year may be carried back to EBITDA for the two
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immediately preceding Fiscal Years, and additional Performance Based Shares
based thereon may vest in accordance with this Section 3(b).
(ii) If Exit Shares (as defined below) shall vest
pursuant to Section 3(c)(i) and at such time there shall be Performance Based
Shares that have not yet vested, then additional Performance Based Shares shall
automatically vest so that the percentage of Performance Based Shares vested
shall not be less than the total percentage of Exit Shares vested.
(iii) Immediately prior to the transfer to Third Parties
of all or substantially all of (A) the Holdings Shares owned by the
Institutional Shareholders on the date hereof or (B) the assets of the Company
and its subsidiaries, the Performance Based Shares that have not vested as of
such date shall automatically vest (whether or not such Shares have been
exercised pursuant to the Option Agreement).
(c) Exit Shares.
(i) The number of Shares listed on Schedule A as Exit
Shares ("Exit Shares") shall vest (whether or not such Shares have been
exercised pursuant to the Option Agreement) on October 6, 2005. Provided,
however, if the amount of Equity Proceeds hereunder equals, during the 12-month
period beginning on the dates indicated below, an amount equal to or greater
than the corresponding amount listed below (each such amount, the "Target Equity
Proceeds"), then all of the Exit Shares shall vest immediately prior to the
consummation of the sale or disposition whereby Equity Proceeds will exceed such
amount:
Period ending
on October 6, Target Equity Proceeds
-------------- ----------------------
1996 $70,000,000
1997 $87,500,000
1998 $105,000,000
1999 $140,000,000
2000 $150,000,000
2001 $180,000,000
2002 $216,000,000
2003 $259,200,000
provided further, for each day of a period, the Target Equity Proceeds shall be
increased by an amount equal to a fraction, the numerator of which is the Target
Equity Proceeds for the last day of such period minus the Target Equity Proceeds
for the last day of the preceding period and the denominator of which is the
number of days in the current period.
After October 6, 1996, if on any day of a period, the
Equity Proceeds are equal to or greater than the Target Equity Proceeds for the
last day of the preceding period, but less than the Target Equity Proceeds for
such date, then the
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amount of Exit Shares that vest shall be equal to (i) the total number of Exit
Shares that have not been forfeited as of such date multiplied by a fraction,
the numerator of which is the Equity Proceeds minus the Target Equity Proceeds
for the last day of the preceding period and the denominator of which is the
Target Equity Proceeds minus the Target Equity Proceeds for the last day of the
preceding period less (ii) the total number of Exit Shares which have previously
vested (or would have vested but for the third sentence of this Section 3)
pursuant to this paragraph.
(ii) In the event of any Public Offering (other than a
registration or offering (A) on Form S-8 or S-4 or any successor or similar
forms, (B) relating to Common Stock issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company, (C) in connection with a direct or indirect acquisition by the Company
of another company or business, (D) in connection with sales of Common Stock or
options to employees of the Company or (E) where the primary purpose of such
registration relates to a debt financing by the Company or any direct or
indirect subsidiary of the Company), if the Institutional Shareholder Valuation
on the date of such Public Offering equals or exceeds the Target Equity Proceeds
in effect on the date of such Public Offering, the number of Exit Shares equal
to the product of the Vesting Percentage for such Public Offering multiplied by
the number of Exit Shares listed on Schedule A shall vest (whether or not such
Shares have been exercised pursuant to the Option Agreement).
(iii) Immediately prior to the transfer to Third
Parties of all or substantially all of (A) the Holdings Shares owned by the
Institutional Shareholders on the date hereof or (B) the assets of the Company
and its subsidiaries, any Exit Shares that have not vested as of such date
shall automatically vest (whether or not such Shares have been exercised
pursuant to the Option Agreement).
(d) Bonus Shares.
(i) The number of Shares listed on Schedule A as Bonus
Shares ("Bonus Shares") shall vest (whether or not such Shares have been
exercised pursuant to the Option Agreement) on October 6, 2005. Provided,
however, the Bonus Shares shall vest earlier if, during either of the periods
listed below, the Equity Proceeds equal or exceed the amount that corresponds
to such period on the chart below (each such amount, the "Target II Equity
Proceeds"):
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Target II
Period Equity Proceeds
------ ---------------
On or before October 6, 1997 $122,500,000
After October 6, 1997 but on or before $165,000,000
October 6, 2000
(ii) In the event of any Public Offering (other than a
registration or offering (A) on Form S-8 or S-4 or any successor or similar
forms, (B) relating to Common Stock issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company, (C) in connection with a direct or indirect acquisition by the Company
of another company or business, (D) in connection with sales of Common Stock or
options to employees of the Company or any direct or indirect subsidiary of the
Company or (E) where the primary purpose of such registration relates to a debt
financing by the Company or any direct or indirect subsidiary of the Company),
if the Institutional Shareholder Valuation on the date of such Public Offering
equals or exceeds the Target II Equity Proceeds in effect on the date of such
Public Offering, the number of Bonus Shares equal to the product of the Vesting
Percentage for such Public Offering multiplied by the number of Bonus Shares
listed on Schedule A shall vest (whether or not such Shares have been exercised
pursuant to the Option Agreement).
(iii) Immediately prior to the occurrence of the transfer
to Third Parties of all or substantially all of (A) the Holdings Shares owned by
the Institutional Shareholders on the date hereof or (B) the assets of the
Company and its subsidiaries, any Bonus Shares that have not vested as of such
date shall automatically vest (whether or not such Shares have been exercised
pursuant to the Option Agreement).
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(e) Certificates. Each certificate issued in respect of Shares
sold to Purchaser hereunder shall be deposited with the Company, or its
designee, together with a stock power executed in blank by Purchaser, and shall
bear a legend disclosing the restrictions on transferability imposed on such
Shares by the Securities Documents. Upon the vesting of any Shares pursuant to
this Section 3, and the satisfaction of any withholding tax liability pursuant
to Section 3(g) hereof, the certificates evidencing any such vested Shares shall
be delivered to Purchaser.
(f) Rights of a Shareholder. Prior to the time a Share is
fully vested hereunder, Purchaser shall have no right to transfer, pledge,
hypothecate or otherwise encumber such Share. During such period, with respect
to the Shares which have been exercised pursuant to the Option Agreement,
Purchaser shall have all other rights of a stockholder, including, but not
limited to, the right to vote and to receive dividends (which shall be held in
escrow by the Company until the Shares to which such dividends relate have
vested). Purchaser agrees (for the benefit of the Company and of each party to
the Shareholders Agreement) that with respect to Shares which have not vested,
Purchaser will vote such unvested shares in all matters in proportion to the
votes cast by all other holders of Holdings Shares entitled to vote on such
matters.
(g) Withholding. Purchaser agrees to make appropriate
arrangements with the Company for satisfaction of any applicable tax withholding
requirements, or similar requirements, arising out of this Agreement.
(h) Adjustment of Targets. Each party to this Agreement and
Holder of a Share that has not vested pursuant to the terms of this Agreement,
by acceptance of such Share, agree and acknowledge that each of the Target
EBITDA, Target Equity Proceeds and Target II Equity Proceeds set forth herein
shall be adjusted by the Company after negotiations between Ashton and the
Company made in good faith to reflect any acquisitions, mergers, consolidations
or other significant corporate transactions affecting the Company.
SECTION 4. Representations and Warranties of the Company.
The Company represents and warrants to Purchaser, as of the
Time of Purchase, as set forth below:
(a) Corporate Existence and Power. The Company is a
corporation, duly incorporated, validly existing and in good standing under the
laws of the state
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of Delaware and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its businesses as
now conducted and as proposed to be conducted and is fully qualified and in good
standing as a foreign corporation registered to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification except where the failure to be so qualified or to be
in good standing would not reasonably be expected to have a Material Adverse
Effect.
(b) Authorization and Execution. The execution, delivery and
performance by each of the Company and Fiberite of each of the Securities
Documents to which it is a party and the issuance by the Company of the Shares
have been duly and validly authorized and are within the corporate powers of the
Company or Fiberite, as the case may be. Each of the Securities Documents to
which the Company or Fiberite is a party has been duly executed and delivered by
it and constitutes its valid and binding agreement.
(c) Capitalization. The authorized capital stock of the
Company consists of 15,000,000 shares of common stock, par value $0.01 per
share. All of the issued and outstanding capital stock of the Company has been
duly authorized and validly issued, is fully paid and nonassessable, and free of
preemptive rights. The authorized capital stock of Fiberite consists of 1,000
shares of common stock, par value $0.01 per share (of which 1,000 shares are
issued and outstanding).
(d) Governmental Authorization. The execution and delivery by
each of the Company and Fiberite of each of the Securities Documents to which it
is a party did not and will not, the issuance and sale by the Company of the
Shares will not, and the consummation of the transactions contemplated hereby
and thereby will not, require any action by or in respect of, or filing with,
any governmental body, agency or governmental official except (a) such actions
or filings as have been undertaken or made prior to the Time of Purchase and
that will be in full force and effect on and as of the Time of Purchase or which
are not required to be filed on or prior to the Time of Purchase (but will be
filed within the applicable time periods therefor) and (b) such actions or
filings that, if not taken or made, would not in the aggregate impose materially
adverse conditions upon the Securities Documents.
(e) Non-Contravention. The execution and delivery by the
Company of the Securities Documents to which it is a party did not and will not,
the issuance and sale by the Company of the Shares will not, and the
consummation of the transactions contemplated hereby and thereby will not,
contravene or constitute a default under or violation of (i) assuming the
filings referred to in Section 4(d) have been undertaken or made, any provision
of applicable law or regulation the violation of which would have a Material
Adverse Effect, (ii) its certificate of incorporation or by-laws, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding upon
it or any of its assets, the violation of which would have a Material Adverse
Effect or result in the creation or imposition of any Lien on any
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asset of the Company or any of its subsidiaries, except pursuant to or as
permitted or contemplated by the terms hereof or of the Finance Documents.
(f) Litigation. There is no action, suit or proceeding pending
to which the Company, Fiberite or GmbH is a party, or to the knowledge of the
Company, which is threatened against the Company, Fiberite or GmbH, before any
court or arbitrator or any governmental body, agency or official that would
reasonably be expected to result in a Material Adverse Effect.
(g) Not an Investment Company; Not a Real Property Holding
Company. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. The Company is not a United States
real property holding company (as that term is defined in Section 897(c)(2) of
the United States Internal Revenue Code of 1986, as amended).
(h) Solicitation; Access to Information. No form of general
solicitation or general advertising was used by the Company or, to the best of
its knowledge, any other Person acting on behalf of the Company, in connection
with the offer and sale of the Shares. Neither the Company not any Person acting
on behalf of the Company has, either directly or indirectly, sold or offered for
sale to any Person any of the Shares or any other similar securities of the
Company except as contemplated by this Agreement (other than those sold to
Carlisle Group, L.P. or other employees of the Company as approved by the Board
of Directors), and the Company represents that neither the Company nor any
Person acting on its behalf will sell or offer for sale to any Person any such
security to, or solicit any offers to buy any such security from, or otherwise
approach or negotiate in respect thereof with, any Person or Persons, in each
case so as thereby to bring the issuance or sale of any of the Shares within the
provisions of Section 5 of the Securities Act.
SECTION 5. Representations and Warranties of Purchaser.
(a) Purchase for Investment; Authority; Binding Agreement.
Purchaser represents and warrants to the Company that:
(i) Purchaser is an "accredited investor" within the
meaning of Rule 501(a) under the Securities Act and the Securities to be
acquired by Purchaser pursuant to this Agreement are being acquired for his own
account and Purchaser will not offer, sell, transfer, pledge, hypothecate or
otherwise dispose of the Shares unless pursuant to a transaction either
registered under, or exempt from registration under, the Securities Act; and
(ii) Purchaser has such knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of his investment in the Securities and is capable of bearing the economic
risks of such investment or Purchaser has been advised by a representative
possessing such knowledge and experience.
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(b) Private Placement. Purchaser represents and warrants to
the Company that:
(i) Purchaser understands that (i) the offering and
sale of the Shares is intended to be exempt from registration under the
Securities Act and (ii) there is no existing public or other market for any of
the Shares and there can be no assurance that Purchaser will be able to sell or
dispose of the Shares to be purchased by Purchaser;
(ii) Purchaser's financial situation is such that
Purchaser can afford to bear the economic risk of holding the Shares acquired
hereunder for an indefinite period of time, Purchaser has adequate means for
providing for Purchaser's needs and contingencies and can afford to suffer the
complete loss of the investment in the Shares;
(iii) Purchaser understands that the Shares acquired
hereunder are a speculative investment which involves a high degree of risk or
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Shares as set forth herein, in the Shares and in
the Shareholders Agreement, and that for an indefinite period following the date
hereof there will be no public market for any of the Shares and that,
accordingly, it may not be possible for Purchaser to sell the Shares in case of
emergency or otherwise;
(iv) Purchaser and his representatives, including his
professional, financial, tax and other advisors, have carefully reviewed all
documents available to them in connection with the investment in the Shares, and
Purchaser understands and has taken cognizance of all the risks related to such
investment;
(v) Purchaser and his representatives have been given
the opportunity to examine all documents and to ask questions of, and to receive
answers from, the Company and its representatives concerning the Company and
each of its subsidiaries and concerning the terms and conditions of the
acquisition of the Shares, and related matters and to obtain all additional
information which Purchaser or his representatives deem necessary; and
(vi) all information which Purchaser has provided to the
Company and its representatives concerning Purchaser and Purchaser's financial
position is true, complete and correct.
(c) Solicitation by Purchaser. Purchaser represents and
warrants to the Company that no form of general solicitation or general
advertising was used by Purchaser or, to the best of its knowledge, any other
Person acting on behalf of Purchaser, in respect of the Shares or in connection
with the purchase of the Shares. Neither Purchaser nor any Person acting on his
behalf has, either directly or indirectly, sold or offered for sale to any
Person any of the Shares or any other similar security of the Company except as
contemplated by this Agreement.
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(d) Legal Capacity and Execution. The Purchaser has the
requisite legal capacity to execute, deliver and perform each of his obligations
under the Securities Documents to which he is a party and to issue the
Promissory Note. Each of the Securities Documents to which Purchaser is a party
has been duly executed and delivered by it and constitutes its valid and binding
agreement.
(e) Governmental Authorization. The execution and delivery
by Purchaser of each of the Securities Documents to which he is a party did not
and will not, the issuance and sale by the Company of the Promissory Note will
not, and the consummation of the transactions contemplated hereby and thereby
will not, require any action by or in respect of, or filing with, any
governmental body, agency or governmental official except (a) such actions or
filings as have been undertaken or made prior to the Time of Purchase and that
will be in full force and effect on and as of the Time of Purchase or which are
not required to be filed on or prior to the Time of Purchase (but will be filed
within the applicable time periods therefor) and (b) such actions or filings
that, if not taken or made, would not in the aggregate impose materially adverse
conditions upon the Securities Documents.
SECTION 6. General.
(a) Legends. The certificates representing all of the Shares
shall have endorsed across the face or back thereof the following legends:
(i) "The shares of stock represented by this
certificate are subject to the terms and conditions of a certain Restricted
Stock Purchase Agreement (the "Purchase Agreement") dated January 2, 1997,
entered into between Fiberite Holdings, Inc. (the "Company") and the holder of
this certificate, which Purchase Agreement is on file with the Secretary of the
Company."
(ii) The shares of stock represented by this certificate
were originally issued on January 2, 1997, and have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of any
State or other jurisdiction and may not be sold, offered for sale or otherwise
transferred unless registered or qualified under said act and applicable state
or other securities laws or unless the Company receives an opinion of counsel
reasonably satisfactory to the Company that registration, qualification or other
such actions are not required under any such laws. The shares of stock
represented by this certificate may not be transferred in violation of such Act,
the rules and regulations thereunder or the provisions of the Purchase
Agreement. The shares of stock represented by this certificate are also subject
to a Shareholders Agreement dated October 6, 1995 among Fiberite Holdings, Inc.
(the "Company") and the various shareholders signatory thereto, and each holder
of shares represented by this certificate agrees to be bound by the terms and
conditions of such Shareholders Agreement. A copy of the Shareholders Agreement
will be furnished without charge by the Company to the holder hereof upon
request.
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Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend or such other legend deemed appropriate by the
Company shall also bear such legend unless, in a written opinion of counsel
(which counsel shall be reasonably acceptable to the Company) addressed to the
Company provided by counsel to Purchaser, the securities represented thereby
need no longer be subject to the restriction contained herein. The provisions of
this Section 6(a) shall be binding upon all subsequent holders of certificates
bearing the above legend.
(b) Notices. All notices, demands and other communications to
any party hereunder shall be in writing (including telecopier or similar
writing) and shall be given to such party at its address set forth on the
signature pages hereof, or such other address as such party may hereinafter
specify for the purpose. Each such notice, demand or other communication shall
be effective (i) if given to telecopy, when such telecopy is transmitted to the
telecopy number specified on the signature page hereof, (ii) if given by mail,
four days after such communication is deposited in the mail with first class
postage prepaid, addresses as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section 6(b).
(c) No Waivers; Amendments.
(i) No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive of
any remedies that may be available to any party at law or in equity or
otherwise.
(ii) Any provision of this Agreement may be amended
supplemented or waived if, but only if, such amendment, supplement or waiver is
in writing and is signed by the Company and, other than with respect to
amendments pursuant to Section 3(i), Purchaser.
(d) Expenses; Documentary Taxes. The Company and Purchaser
each agree to bear its own costs, expenses and other payments in connection with
the purchase and sale of the Shares as contemplated by this Agreement including
without limitation (i) fees and disbursements of special counsel for the Company
incurred in connection with the preparation of this Agreement and (ii) all
out-of-pocket expenses of the Company, including fees and disbursements of
counsel, in connection with any waiver or consent hereunder or any amendment
hereof. The Company and Purchaser each agree to share equally any and all stamp,
transfer and other similar taxes, assessments or charges payable in connection
with the execution and delivery of this Agreement or the issuance of the Shares.
(e) Successors and Assigns; Transferability. This Agreement
shall be binding upon the Company and Purchaser and its successors and assigns.
Purchaser may not assign or otherwise transfer his rights or obligations under
this Agreement to any other Person without the prior written consent of the
Company. All provisions hereunder purporting to give rights to Holders of Shares
are for the
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express benefit of such Persons. The Shares are subject to the transfer
restrictions set forth herein in the Shares and in the Shareholders Agreement.
(f) Brokers. Each of the Company and Purchaser represents and
warrants that it has not employed any broker, finder, financial advisor or
investment banker who might be entitled to any brokerage, finder's or other fee
or commission in connection with the sale of Shares.
(g) New York Law; Submission to Jurisdiction; Waiver of Jury
Trial. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF. EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
SHARES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(i) Counterparts. This Agreement may be executed in any number
of counterparts each of which shall be an original with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(j) Elimination of Fractional Shares. If under any provision
of the Agreement which requires a computation of the number of Shares, the
number so computed is not a whole number such number shall be rounded down to
the next whole number.
(k) Entire Agreement. The Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements, arrangements
and communications, whether oral or written, pertaining to the Shares.
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IN WITNESS WHEREOF, the parties hereto have cause this
Agreement to be duly executed by their respective authorized officers or
representatives, as of the date first above written.
_____________________________________
Xxxxx X. Xxxxxx
Address: 0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
FIBERITE HOLDINGS, INC.
By:__________________________________
Name:
Title:
Address: 0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: _______________________
Fax: ________________________
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SCHEDULE A
SHARES
Type Amount of Shares
---- ----------------
Time Based Shares 116,000
Performance Based Shares 116,000
Exit Shares 58,000
Bonus Shares 116,000
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