Exhibit 10.13
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made as of February 12,
2004, between VI Acquisition Corp., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Executive").
The Company and Executive desire to enter into an agreement pursuant to
which Executive will commit to purchase, and the Company will commit to sell, an
aggregate of 14,295 shares of the Company's Common Stock, par value $.0001 per
share (the "Common Stock"). All of such shares of Common Stock are referred to
herein as "Executive Shares or the "Shares." Certain definitions are set forth
in Section 7 of this Agreement.
The parties hereto agree as follows:
1. Executive Shares.
(a) Upon execution of this Agreement, Executive will purchase, and
the Company will sell, 14,295 shares of Common Stock at a price of $1.00 per
share, the fair market value of the Common Stock on the date hereof. The Company
will deliver to Executive the certificates representing such Executive Shares,
and Executive will deliver to the Company a cashier's or certified check or wire
transfer of funds in the aggregate amount of $14,295.00.
(b) Within thirty (30) days after the purchase by Executive of
Executive Shares pursuant to this Agreement, Executive will make an effective
election with the Internal Revenue Service under Section 83(b) of the Internal
Revenue Code and the regulations promulgated thereunder in the form of Exhibit A
attached hereto.
(c) In connection with the purchase and sale of the Executive
Shares pursuant hereto, Executive represents and warrants to the Company that:
(i) The Executive Shares to be acquired by Executive
pursuant to this Agreement will be acquired for Executive's own account
and not with a view to, or intention of, distribution thereof in
violation of the Securities Act, or any applicable state securities
laws, and the Executive Shares will not be disposed of in contravention
of the Securities Act or any applicable state securities laws;
(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks
and benefits of the investment in the Executive Shares;
(iii) Executive is able to bear the economic risk of his
investment in the Executive Shares for an indefinite period of time
because the Executive Shares have not been registered under the
Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such
registration is available;
(iv) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
the Executive Shares and has had full access to such other information
concerning the Company as he has requested;
(v) This Agreement and each of the other agreements
contemplated hereby to which Executive is a party constitute legal,
valid and binding obligations of Executive, enforceable in accordance
with their terms, and the execution, delivery and performance of this
Agreement and such other agreements by Executive does not and will not
conflict with, violate or cause a breach of any agreement, contract or
instrument to which Executive is a party or any judgment, order or
decree to which Executive is subject;
(vi) Executive is not a party to or bound by any other
employment agreement, noncompete agreement or confidentiality agreement
which conflicts with the obligations set forth in this Agreement or in
the Employment Agreement; and
(vii) Executive is a resident of the State of Colorado.
(d) As an inducement for the Company to commit to issue the
Executive Shares to Executive, and as a condition thereto, Executive
acknowledges and agrees that neither any future issuance of capital stock of the
Company to Executive nor any provision contained herein shall entitle Executive
to remain in the employment of the Company, or any Subsidiary of the Company, or
affect the right of the Company or any Subsidiary to terminate Executive's
employment at any time for any reason, subject to the terms and conditions of
the Employment Agreement.
2. Vesting of Shares.
(a) Except as otherwise provided in Section 2(b) below, the
Executive Shares purchased hereunder will become vested in accordance with the
following schedule, if as of each such date Executive is still employed by the
Company or any Subsidiary of the Company:
CUMULATIVE PERCENTAGE OF
DATE EXECUTIVE SHARES TO BE VESTED
---- -----------------------------
1st Anniversary of this Agreement 20%
2nd Anniversary of this Agreement 40%
3rd Anniversary of this Agreement 60%
4th Anniversary of this Agreement 80%
5th Anniversary of this Agreement 100%
(b) Notwithstanding the foregoing or anything herein to the
contrary, upon the occurrence of a Sale of the Company, all Executive Shares
which have not yet become vested shall become vested at the time of such Sale of
the Company (such portion being referred to herein as the "Accelerated Shares");
provided, however, and subject to and unless otherwise provided for under the
Stockholders Agreement by and among the Company, the Investors, the Executive
and certain other parties, that Executive shall not Transfer any interest in any
Accelerated Shares unless and until such time as the Investors shall have
received cash dividends
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or other cash proceeds resulting from any distributions on or dispositions of
any Preferred Stock or Common Stock in an aggregate amount equal to the product
of (i) two (2), multiplied by (ii) the aggregate purchase price paid by the
Investors to the Company for all Preferred Stock, Common Stock and other equity
interests of the Company purchased by the Investors (but not in any event
including amounts committed but not yet contributed to the capital of the
Company). Executive Shares which have become vested hereunder are referred to
herein as "Vested Shares," and all other Executive Shares are referred to herein
as "Unvested Shares."
(c) The Executive Securities shall at all times be subject to such
restrictions or limitations with respect to the Transfer thereof that may be
contained herein or in the Stockholders Agreement or as otherwise provided by
law.
3. Repurchase Option.
(a) In the event Executive ceases to be employed by the Company or
any Subsidiary for any reason (a "Separation"), the Shares and all other
Executive Securities (whether held by Executive or one or more of Executive's
transferees, other than the Company and the Investors) will be subject to
repurchase, in each case by the Company pursuant to the terms and conditions set
forth in this Section 3 (the "Repurchase Option").
(b) In the event of a Separation, the Executive Shares purchased
hereunder shall be subject to repurchase as follows: (i) the purchase price for
each Unvested Share of Common Stock will be the Executive's Original Cost for
such share; provided, that if Executive's employment is terminated by the
Company or a Subsidiary with Due Cause or by the Executive without Good Reason,
then the purchase price for each Unvested Share of Common Stock will be the
lesser of (a) Executive's Original Cost for such share and (b) the Fair Market
Value for such share, and (ii) the purchase price for each Vested Share of
Common Stock will be the Fair Market Value for such share; provided that if
Executive's employment is terminated by the Company or a Subsidiary with Due
Cause or by the Executive without Good Reason, then the purchase price for each
Vested Share of Common Stock will be the lesser of (a) Executive's Original Cost
for such share and (b) the Fair Market Value for such share.
(c) In the event of a Separation, any other Executive Securities
not otherwise described in Section 3(b) above shall be subject to repurchase as
follows: (i) the purchase price for each share of Common Stock will be the Fair
Market Value for such share and (ii) the purchase price for each share of
Preferred Stock will be Executive's Original Cost for such share.
(d) In the event of a Separation, the Company may elect to
purchase all or any portion of the Executive Securities by delivering written
notice (the "Repurchase Notice") to the holder or holders of the Executive
Securities within 60 days after the Separation. The Repurchase Notice will set
forth the number of Unvested Shares and Vested Shares to be acquired from each
holder, the aggregate consideration to be paid for such securities and the time
and place for the closing of the transaction. The number of each type of
securities to be repurchased by 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. If the number of any or all types of
Executive Securities then held by Executive is less than the total number of
such securities which the Company has elected to purchase, the Company shall
purchase the remaining securities
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elected to be purchased from the other holder(s) of Executive Securities under
this Agreement, pro rata according to the number of the applicable type of
Executive Securities held by such other holder(s) at the time of delivery of
such Repurchase Notice (determined as nearly as practicable to the nearest
share). The number of Unvested Shares and Vested Shares to be repurchased
hereunder will be allocated among Executive and the other holders of Executive
Securities (if any) pro rata according to the number of the applicable type of
Executive Securities to be purchased from such Person.
(e) The closing of the purchase of the Executive Securities
pursuant to the Repurchase Option shall take place on the date designated by the
Company in the Repurchase Notice, which date shall not be more than 2 months nor
less than 5 days after the delivery of such notice. The Company will pay for the
Executive Securities to be purchased by it pursuant to the Repurchase Option by
first offsetting amounts outstanding under any bona fide debts owed by Executive
to the Company and will pay the remainder of the purchase price to the extent
reasonably permissible under the Company's and its Subsidiaries' equity
financing agreements and agreements evidencing indebtedness for borrowed money
and to the extent the Company has the financial wherewithal at the time to make
such payments, by a check or wire transfer of funds and, if not, by a
subordinate note or notes, each on terms acceptable to banks and other financial
institutions loaning money to the Company and its Subsidiaries, payable in up to
three substantially equal, semi-annual installments beginning on the six month
anniversary of the closing of such purchase and bearing interest (payable
quarterly) at a rate per annum equal to the prime rate as published in The Wall
Street Journal from time to time, in the aggregate amount of the purchase price
for such securities. The Company will be entitled to receive customary
representations and warranties from the sellers of Executive Securities
(including representations and warranties regarding good title to the Executive
Securities, the absence of any liens on such title or other encumbrances with
respect to the Transfer of the Executive Securities and the ability of such
sellers to consummate the sale).
(f) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Executive Securities by the Company shall be
subject to applicable restrictions contained in the Delaware General Corporation
Law and as may be required by other parties in the Company's or any
Subsidiaries' equity financing agreements and agreements evidencing indebtedness
for borrowed money, if any. If any such restrictions prohibit the repurchase of
Executive Securities hereunder which the Company is otherwise entitled or
required to make, the Company may make such repurchases as soon as it is
permitted to do so under such restrictions.
(g) Notwithstanding anything to the contrary contained in this
Agreement, if Executive delivers the notice of objection described in the
definition of Fair Market Value, or if the Fair Market Value of a Share is
otherwise determined to be an amount more than 10% greater than the per share
repurchase price for such Shares originally determined by the Board, the Company
shall have the right to revoke its exercise of the Repurchase Option for all or
any portion of the Shares elected to be repurchased by it by delivering notice
of such revocation in writing to the holders of the Shares during (i) the
thirty-day period beginning on the date the Company receives Executive's written
notice of objection and (ii) the thirty-day period beginning on the date the
Company is given written notice that the Fair Market Value of a Share was
finally determined to be an amount more than 10% greater than the per share
repurchase price for such Shares originally determined by the Board.
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4. Restrictions on Transfer of Executive Securities.
(a) Transfer of Executive Securities. Executive shall not Transfer
any interest in any Executive Securities, except at such time as the
restrictions herein terminate as provided in Section 4(b) below. Notwithstanding
the foregoing, the restrictions contained in this Section 4 will not apply with
respect to (i) Transfers of shares of Executive Securities pursuant to
applicable laws of descent and distribution or (ii) Transfer of shares of
Executive Securities among Executive's Family Group; provided that in each case
such restrictions will continue to be applicable to the Executive Securities
irrespective of any such Transfer. Any transferee of Executive Securities
pursuant to a Transfer in accordance with the provisions of this Section 4(a) is
herein referred to as a "Permitted Transferee." In addition to and without
limitation on the operation of this Section 4, Executive acknowledges that the
Stockholders Agreement separately imposes restrictions on the Transfer of the
Shares.
(b) Termination of Restrictions. The restrictions on the Transfer
of Executive Securities set forth in this Section 4 will continue with respect
to each Executive Security until the earlier of (i) a Qualified Public Offering;
or (ii) a Sale of the Company.
5. Registration. Executive understands that the Shares are not
currently being registered under the Securities Act by reason of their
contemplated issuance in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act pursuant to Rule 701
thereof. Executive further agrees that he will not sell or otherwise dispose of
the Shares unless such sale or other disposition has been registered or is
exempt from registration under the Securities Act and has been registered or
qualified or is exempt from registration or qualification under applicable
securities laws of any state. Executive understands that a restrictive legend
consistent with the foregoing, and as set forth in Section 6, will be placed on
the certificates evidencing the Shares, and related stop transfer instructions
will be noted in the stock transfer records of the Company and/or its stock
transfer agent for the Shares.
6. Additional Restrictions on Transfer of Executive Securities.
(a) Legend. The certificates representing the Executive Securities
will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
AS OF FEBRUARY 20, 2004, 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 A MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN EXECUTIVE OF
THE COMPANY DATED AS OF FEBRUARY 20, 2004. A COPY OF SUCH AGREEMENT MAY
BE OBTAINED BY THE
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HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE."
(b) Opinion of Counsel. No holder of Executive Securities may
transfer any Executive Securities (except pursuant to an effective registration
statement under the Securities Act) without first delivering to the Company an
opinion of counsel (reasonably acceptable in form and substance to the Company)
that neither registration nor qualification under the Securities Act and
applicable state securities laws is required in connection with such Transfer.
7. Definitions.
"Affiliate" of the Investors means any direct or indirect general or
limited partner or member of an Investor, as applicable, or any employee or
owner thereof, or any other person, entity or investment fund controlling,
controlled by or under common control with an Investor.
"Due Cause" has the meaning set forth in the Employment Agreement.
"Employment Agreement" means that certain Employment Agreement of even
date herewith between VICORP Restaurants, Inc. and the Executive.
"Executive's Family Group" means Executive's spouse and descendants
(whether natural or adopted), any trust solely for the benefit of Executive
and/or Executive's spouse and/or descendants and any retirement plan for the
Executive.
"Executive Securities" means the Shares and any other securities of the
Company held by Executive or any of Executive's transferees permitted hereunder.
All Executive Securities will continue to be Executive Securities in the hands
of any holder other than Executive (except for the Company, the Investors and
the Investors' Affiliates and except for transferees in a Public Sale). Except
as otherwise provided herein, each such other holder of Executive Securities
will succeed to all rights and obligations attributable to Executive as a holder
of Executive Securities hereunder. Executive Securities will also include shares
of the Company's capital stock or other securities of the Company issued with
respect to Executive Securities by way of a stock split, dividend or other
recapitalization or reclassification.
"Fair Market Value" of each Share as of a relevant date means the
average of the closing prices of the sales of the Common Stock on all securities
exchanges on which such Common Stock may at the time be listed on that date, or,
if there have been no sales or exchange on which the Common Stock is listed on
any day, the average of the highest bid and lowest asked prices on all
nationally-recognized exchanges at the end of such day, or, if on any day such
Common Stock is not so listed, the average of the representative bid and asked
prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if on any
day such Common Stock is not quoted in the NASDAQ System, of 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. If at any time such Common
Stock is not listed on any securities exchange or quoted in the NASDAQ System or
the over-the-counter market, the Fair Market Value will be the fair value of
such Common Stock determined in good faith by the
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Board of Directors of the Company (the "Board Calculation"). If the Executive
disagrees with the Board Calculation, the Executive may, within 30 days after
receipt of the Board Calculation, deliver a notice (an "Objection Notice") to
the Company setting forth the Executive's calculation of Fair Market Value. The
Board and the Executive will negotiate in good faith to agree on such Fair
Market Value, but if such agreement is not reached within 30 days after the
Company has received the Objection Notice, Fair Market Value shall be determined
by an appraiser selected by the Board, which appraiser shall submit to the Board
and the Executive a report within 30 days of its engagement setting forth such
determination. The determination of such appraiser shall be final and binding
upon all parties. The expenses of such appraiser shall be borne by the Executive
unless the appraiser's valuation is more than 10% greater than the amount
determined by the Board of Directors, in which case, the costs of the appraiser
shall be borne by the Company. If the Repurchase Option is exercised within 45
days after a Separation, then Fair Market Value shall be determined as of the
date of such Separation; thereafter, Fair Market Value shall be determined as of
the date the Repurchase Option is exercised. A comparable process will be
employed to determine the Fair Market Value of Preferred Stock.
"Good Reason" has the meaning set forth in the Employment Agreement.
"Investors" has the meaning set forth in the Stockholders Agreement.
"Original Cost" means, (i) with respect to each share of Common Stock
purchased hereunder, $1.00 (as proportionately adjusted for all subsequent stock
splits, stock dividends and other recapitalizations) and (ii) with respect to
each share of Preferred Stock, the price paid for such Preferred Stock, plus all
accrued and unpaid dividends of the Preferred Stock (as proportionately adjusted
for all subsequent stock splits, stock dividends and other recapitalizations).
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means preferred stock issued by the Company.
"Public Sale" means any sale pursuant to a registered public offering
under the Securities Act or any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker.
"Qualified Public Offering" means the sale in an underwritten public
offering registered under the Securities Act of shares of the Company's Common
Stock approved by the Board of Directors pursuant to which the Investors have
realized in cash a return of two or more times the amount of their investment in
the Company.
"Sale of the Company" means any transaction or series of transactions
pursuant to which (A) any Person(s) other than the Investors and their
respective Affiliates in the aggregate acquire(s) (i) capital stock of the
Company possessing the voting power (other than voting rights accruing only in
the event of a default, breach or event of noncompliance) to elect a majority of
the Company's board of directors (whether by merger, consolidation,
reorganization, combination, sale or transfer of the Company's capital stock,
shareholder or voting agreement,
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proxy, power of attorney or otherwise) or (ii) all or substantially all of the
Company's assets determined on a consolidated basis; provided that the term
"Sale of the Company" shall not include any sale of equity or debt securities by
the Company in a private offering to other investors selected by the Investors;
or (B) more than 50% of the assets of the Company (treating investments in
Affiliates as assets for these purposes) is spun off, split off or otherwise
distributed.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Stockholders Agreement" means that certain Stockholders Agreement
dated June 13, 2003 among the Company, the Investors, and certain other parties,
and joined by the Executive of even date herewith.
"Subsidiary" means any entity of which the Company owns securities
having a majority of the ordinary voting power in electing the board of
directors, or the equivalent governing body, directly or through one or more
subsidiaries.
"Transfer" means to sell, transfer, assign, pledge or otherwise dispose
of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
8. Notices. Any notice, consent, waiver and other communications required or
permitted pursuant to the provisions of this Agreement must be in writing and
will be deemed to have been properly given (a) when delivered by hand; (b) when
sent by telecopier (with acknowledgement of complete transmission), provided
that a copy is mailed by U.S. certified mail, return receipt requested; (c)
three (3) days after sent by certified mail, return receipt requested; or (d)
one (1) day after deposit with a nationally recognized overnight delivery
service, in each case to the appropriate addresses and telecopier numbers set
forth below:
If to the Company:
VI Acquisition Corp.
▇/▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
-------------------------
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with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Each party will be entitled to specify a different address for the receipt of
subsequent notices by giving written notice thereof to the other party in
accordance with this Section 8.
9. 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 null and void, and the Company shall not record such Transfer
on its books or treat any purported transferee of such Executive Securities as
the owner of such securities for any purpose.
(b) 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.
(c) 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.
Executive hereby releases the Company and its affiliates and its and their
predecessors from any obligation or liability the Company or any of its
affiliates or its or their predecessors owes or owed to Executive or any of his
affiliates and related persons prior to the date hereof.
(d) 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.
(e) Successors and Assigns.
(i) All Executive Securities will continue to be
Executive Securities in the hands of any holder other than Executive,
including any of Executive's transferees permitted hereunder or under
the Stockholders Agreement (except for the Company, the Investors and
the Investors' Affiliates and except for transferees in a Public Sale).
Except as otherwise provided herein, each such other holder of
Executive Securities will
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succeed to all rights and obligations attributable to Executive as a
holder of Executive Securities hereunder.
(ii) Except as otherwise provided herein, this Agreement
shall bind and inure to the benefit of and be enforceable by Executive,
the Company, the Investors and their respective successors and assigns
(including subsequent holders of Executive Securities); provided that
the rights and obligations of Executive under this Agreement shall not
be assignable except in connection with a permitted transfer of
Executive Securities hereunder.
(iii) Each of the Investors is intended to be a third party
beneficiary of this Agreement and may enforce any rights granted to it
hereunder.
(f) Choice of Law. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
Furthermore, Executive and Company agree and consent to submit to personal
jurisdiction in the State of Illinois in any state or federal court of competent
subject matter jurisdiction situated in ▇▇▇▇ County, Illinois. Executive and
Company agree that the sole and exclusive venue for any suit arising out of, or
seeking to enforce, the terms of this Agreement shall be in a state or federal
court of competent subject matter jurisdiction situated in ▇▇▇▇ County,
Illinois.
(g) Remedies. Each of the parties to this Agreement (including the
Investor) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including 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.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Executive. No cause of conduct or failure or delay in enforcing the provisions
of this Agreement shall affect the validity, binding effect or enforceability of
this Agreement.
(i) 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 Company's chief executive office is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
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(j) Indemnification and Reimbursement of Payments on Behalf of
Executive. The Company and any Subsidiary shall be entitled to deduct or
withhold from any amounts owing from the Company or any Subsidiary to the
Executive any federal, state, local or foreign withholding taxes, excise taxes,
or employment taxes ("Taxes") imposed with respect to the Executive's
compensation or other payments from the Company or any Subsidiary or the
Executive's ownership interest in the Company, including, but not limited to,
wages, bonuses, dividends, the receipt or exercise of stock options and/or the
receipt or vesting of restricted stock. The Executive shall indemnify the
Company and any Subsidiary for any amounts paid with respect to any such Taxes,
together with any interest, penalties and related expenses thereto.
(k) Termination. This Agreement shall survive the termination of
Executive's employment with the Company or any Subsidiary and shall remain in
full force and effect after such termination.
(l) Generally Accepted Accounting Principles; Adjustments of
Numbers. Where any accounting determination or calculation is required to be
made under this Agreement or the exhibits hereto, such determination or
calculation (unless otherwise provided) shall be made in accordance with United
States generally accepted accounting principles, consistently applied. All
numbers set forth herein which refer to share prices or amounts will be
appropriately adjusted to reflect stock splits, stock dividends, combinations of
shares, recapitalizations or other similar transactions affecting the subject
class of stock.
(m) Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury of any claim or cause of
action in any legal proceeding arising out of or related to this Agreement or
the transactions or events contemplated hereby or any course of conduct, course
of dealing, statements (whether verbal or written) or actions of any party
hereto. The parties hereto each agree that any and all such claims and causes of
action shall be tried by a court trial without a jury. Each of the parties
hereto further waives any right to seek to consolidate any such legal proceeding
in which a jury trial has been waived with any other legal proceeding in which a
jury trial cannot or has not been waived.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Management Agreement
as of the date first written above.
VI ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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12
EXHIBIT A
ELECTION TO INCLUDE VALUE OF
RESTRICTED PROPERTY IN GROSS INCOME
IN YEAR OF TRANSFER UNDER CODE SECTION 83(b)
The undersigned (the "TAXPAYER") hereby elects pursuant to Section 83(b)
of the Internal Revenue Code to include the restricted property described below
in his gross income for the tax year ending December 31, 2004 and supplies the
following information in accordance with the regulations promulgated thereunder:
1. THE NAME, ADDRESS AND TAXPAYER IDENTIFICATION NUMBER OF THE TAXPAYER ARE:
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Social Security # _______________
2. DESCRIPTION OF PROPERTY WITH RESPECT TO WHICH THE ELECTION IS BEING MADE:
14,295 shares (the "SHARES") of Common Stock, par value $0.0001 per share,
of VI Acquisition Corp., a Delaware corporation (the "COMPANY").
3. THE DATE ON WHICH PROPERTY WAS TRANSFERRED IS FEBRUARY 20, 2004.
The taxable year to which this election relates is calendar year 2004.
4. THE NATURE OF THE RESTRICTION(S) TO WHICH THE PROPERTY IS SUBJECT IS:
A. The Shares are not transferable except as permitted by a Management
Agreement. Transferees are generally subject to the same restrictions as are
imposed on their transferors. Certificates representing the Shares contain
legends to give notice of restrictions on transfer.
B. If the Taxpayer ceases to serve as an employee of the Company or a
subsidiary, prior to certain specified time periods (the last day of each such
period, a "VESTING DATE"), a portion of the Shares will be subject to repurchase
by the Company at the amount the Taxpayer paid for the Shares (the "PURCHASE
PRICE"). In certain circumstances (termination for cause, or resignation without
good reason), the Purchase Price may be lowered to fair market value if that is
less than the amount the Taxpayer paid for the Shares. On each specified Vesting
Date, a portion of the Shares subject to repurchase at the Purchase Price will
lapse and such portion will then be repurchasable at its fair market value in
the event the Taxpayer ceases to serve as an employee of the Company (for a
reason other than cause or resignation without good reason, in either case in
which the Purchase Price may be lowered to the amount the Taxpayer paid for the
Shares). On February 20, 2009, which is the last Vesting Date, all Shares then
will be repurchasable at their fair market value in the event the Taxpayer
ceases to serve as an employee of the Company (for a reason other than cause or
resignation without good reason, in either case in which the Purchase Price may
be lowered to the amount the Taxpayer paid for the Shares).
5. FAIR MARKET VALUE:
The fair market value at time of transfer (determined without regard to
any restrictions other than restrictions which by their terms will never lapse)
of the property with respect to which this election is being made is $1.00 per
Share.
6. AMOUNT PAID FOR PROPERTY:
The amount paid by Taxpayer for said property is $1.00 per Share.
7. FURNISHING STATEMENT TO EMPLOYER:
A copy of this statement has been furnished to the Company.
Dated: February 20, 2004
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This election must be filed with the Internal Revenue Service Center with which
the Taxpayer files his or her Federal income tax returns and must be filed
within thirty (30) days after the date of purchase. This filing should be made
by registered or certified mail, return receipt requested. The taxpayer must
retain two copies of the completed form for filing with his or her Federal and
State tax returns for the current tax year and an additional copy for his or her
records.
2
