EXHIBIT 10.26
Key Put Agreement
This Agreement (the "Agreement") is made as of the 13th day of June, 1997
(the "Closing Date") between Omega Holdings, Inc., a Delaware corporation (the
"Company") and Xxxxx X. Key (the "Stockholder").
Recitals
WHEREAS, the Company and the Stockholder have entered into a Stockholders
Agreement dated as of June 13, 1997 among the Company, Mezzanine Lending
Associates III, L.P., BCC Industrial Services, Inc., the Stockholder and certain
other Management Holders (as defined therein) party thereto, and the other
parties thereto (as from time to time in effect, the "Stockholders Agreement");
and
WHEREAS, the parties hereto desire to set forth their agreements on certain
additional matters.
Agreement
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Stockholder Put Options.
1.1. Grant of Put Option. The Company hereby grants to the Stockholder an
option (a "Put Option"), upon the occurrence of a Special Put Event with respect
to him, to require the Company to purchase all, but not less than all, of the
Management Shares then held by the Stockholder (or by a permitted transferee to
which such Management Shares were Transferred pursuant to Section 5.1 of the
Stockholders Agreement) at a price per share (determined as of the date of
closing of the Put Option) equal to the Fair Market Value.
1.2. Exercise of Put Option. The Stockholder may elect to cause the
Company (which may cause part or all of its purchase obligations hereunder to be
fulfilled by one or more Designated Persons), to purchase all of the Management
Shares subject to the Put Option by delivering written notice to the Company
within thirty (30) days after the later of the Special Put Event and the
determination of the repurchase price in connection with the Special Put Event
(the "Expiration Date"); provided that if the Stockholder shall die after the
occurrence of the Special Put Event and before the Expiration Date, such
election may be made by the Stockholder's estate, executor, administrator, or
personal representative, as the case may be, and if such notice would otherwise
be required to be delivered earlier than the
ninetieth (90th) day after such death, then the time within which such notice
must be delivered shall be extended to such ninetieth (90th) day. Such notice
shall set forth the number of Management Shares to be acquired from such holder,
the aggregate consideration to be paid for such Management Shares, and the time
and place for the closing of such purchase. If the Company elects to have any
part of the purchase made by Designated Persons, the Company will promptly
notify the Stockholder of the identity of such purchaser(s). Section 5 of the
Stockholders Agreement shall not restrict any Transfer made in accordance with
this Agreement.
1.3. Closing. The closing of the purchase of Management Shares pursuant to
the exercise of a Put Option shall occur 20 business days after the date of the
notice of exercise thereof, at the principal office of the Company at 11:00 a.m.
local time, or at such other time and location as the parties to such purchase
may mutually determine. At the closing, the Stockholder exercising the Put
Option shall deliver to the Company or the Designated Persons, as the case may
be, a certificate or certificates representing the Management Shares subject to
the Put Option, duly endorsed for transfer and with signatures guaranteed, free
and clear of any lien or encumbrance, with any necessary stock transfer tax
stamps affixed, against payment of the purchase price by certified or bank
check; provided that the Company may in its sole discretion pay all or any part
of such purchase price by delivery of a Put Note in the form of Exhibit 1.3
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hereto (a "Put Note") having an aggregate principal amount equal to the portion
of the purchase price represented by such Put Note.
1.4. Termination of Put Option. The provisions of Section 1 shall expire
on the earliest of: (a) the first date prior to the Company's Initial Public
Offering on which the Sponsors own less than twenty-five percent (25%) of all
voting Equivalent Shares or (b) immediately following the closing of the
Company's Initial Public Offering.
2. Definitions. Terms defined in the Stockholders Agreement and not otherwise
defined herein are used herein as so defined. In addition, the following terms
have the following meanings:
2.1. "Special Put Event" shall mean the Normal Retirement of the
Stockholder.
2.2. "Normal Retirement" shall mean retirement from employment by the
Company and its Subsidiaries on or after the fifth anniversary of the date of
this Agreement.
3. Governing Law; Jurisdiction.
3.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any other jurisdiction.
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3.2. Consent to Jurisdiction. Each of the parties agrees that all actions,
suits or proceedings arising out of or based upon this Agreement or the subject
matter hereof shall be brought and maintained exclusively in the federal and
state courts of the State of Delaware, provided that the Company may bring any
such action, suit or proceeding against the Stockholder in any jurisdiction in
which the Stockholder is subject to personal jurisdiction. Each of the parties
hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of
the federal and state courts in the State of Delaware for the purpose of any
action, suit or proceeding arising out of or based upon this Agreement or the
subject matter hereof and (ii) hereby waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or proceeding, any claim that he or it is
not subject personally to the jurisdiction of the above-named courts, that he or
it is immune from extraterritorial injunctive relief or other injunctive relief,
that his or its property is exempt or immune from attachment or execution, that
any such action, suit or proceeding may not be brought or maintained in one of
the above-named courts, that any such action, suit or proceeding brought or
maintained in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred to any court other than one of the
above-named courts, should be stayed by virtue of the pendency of any other
action, suit or proceeding in any court other than one of the above-named
courts, or that this Agreement or the subject matter hereof may not be enforced
in or by any of the above-named courts. Each of the parties hereto hereby
consents to service of process in any such suit, action or proceeding in any
manner permitted by the laws of the State of Delaware, agrees that service of
process by registered or certified mail, return receipt requested, at the
address specified in or pursuant to Section 4.7 is reasonably calculated to give
actual notice and waives and agrees not to assert by way of motion, as a defense
or otherwise, in any such action, suit or proceeding any claim that service of
process made in accordance with Section 4.7 does not constitute good and
sufficient service of process. The provisions of this Section 3.2 shall not
restrict the ability of any party to enforce in any court any judgment obtained
in a federal or state court of the State of Delaware.
3.3. Waiver of Jury Trial. To the extent not prohibited by applicable law
that cannot be waived, each of the parties hereto hereby waives, and covenants
that he or it will not assert (whether as plaintiff, defendant, or otherwise),
any right to trial by jury in any forum in respect of any issue, claim, demand,
cause of action, action, suit or proceeding arising out of or based upon this
Agreement or the subject matter hereof, in each case whether now existing or
hereafter arising and whether in contract or tort or otherwise. Any of the
parties hereto may file an original counterpart or a copy of this Section 3.3
with any court as written evidence of the consent of each of the parties hereto
to the waiver of his or its right to trial by jury.
3.4. Reliance. Each of the parties hereto acknowledges that he or it has
been informed by each other party that the provisions of this Section 3
constitute a material inducement upon which such party is relying and will rely
in entering into this Agreement and the transactions contemplated hereby.
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4. Miscellaneous.
4.1. Entire Agreement; Waivers. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties with
respect to such subject matter, it being understood that this Agreement is in
addition to the Stockholders Agreement, and neither this Agreement nor the
Stockholders Agreement shall amend or modify the other. No waiver of any
provision of this Agreement (A) shall be deemed to or shall constitute a waiver
of any other provision hereof (whether or not similar), (B) shall constitute a
continuing waiver unless otherwise expressly provided therein, or (C) shall be
effective unless in writing and executed (i) in the case of a waiver by the
Company, by the Company, and (ii) in the case of a waiver by the Stockholder, by
the Stockholder.
4.2. Amendment or Modification, etc. The parties hereto may not amend or
modify this Agreement except in such manner as may be agreed upon by a written
instrument executed by the Company and by the Stockholder. Any written
amendment, modification or waiver executed by the Company and the Stockholder
shall be binding upon the Company and the Stockholder.
4.3. Headings, etc. Section and subsection headings are not to be
considered part of this Agreement, are included solely for convenience, are not
intended to be full or accurate descriptions of the content thereof and shall
not affect the construction hereof. This Agreement shall be deemed to express
the mutual intent of the parties, and no rule of strict construction shall be
applied against any party.
4.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
4.5. Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective transferees, successors and assigns (each of which
shall be deemed to be a party hereto for all purposes hereof); provided,
however, that (A) except as set forth in the proviso below, no party may
transfer or assign any of its rights or obligations hereunder without the
consent of the Company and the Stockholder, and (B) no transfer or assignment by
any party shall relieve such party of any of its obligations hereunder,
provided, further, however, that the Company may transfer or assign any or all
of its rights and obligations hereunder to (i) any person or entity controlling,
controlled by or under common control with the Company, (ii) any person or
entity providing financing in connection with the transactions contemplated
hereby,
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including without limitation any direct or indirect refinancing thereof, or
(iii) any person or entity acquiring all or substantially all of the business
and assets of the Company, in each case substituting such assignee or assignees
in the place of the Company under this Agreement, with the same force and effect
as if this Agreement were, in whole or in part, originally made with such
assignee or assignees. Except as expressly provided herein, this Agreement shall
not confer any right or remedy upon any person or entity other than the parties
and their respective transferees, successors and assigns. A merger shall not
constitute a transfer or assignment for purposes of this Section 4.5.
4.6 Severability. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof. If such
construction or deletion substantially affects or alters the commercial basis of
this Agreement, the parties shall negotiate in good faith to amend and modify
the terms and provisions of this Agreement to give effect to the original intent
of the parties.
4.7 Notices. Any notices or other communications required or permitted
hereunder shall be effective if in writing and delivered in the manner required
by the Stockholders Agreement, in each case addressed as provided by the
Stockholders Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have hereunto set their hands under seal, as of the date first above
written.
The Stockholder: The Company:
OMEGA HOLDINGS, INC.
/s/ Xxxxx X. Key By: /s/ Xxxxx X. Key
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Xxxxx X. Key Name: Xxxxx X. Key
Title: CEO
