EXHIBIT 10.1
FORM OF
MANAGEMENT STOCK SUBSCRIPTION AGREEMENT
MANAGEMENT STOCK SUBSCRIPTION AGREEMENT (the "Agreement"), dated as of
______ __, 1996, by and among GGS Holdings, Inc., a Delaware corporation
("Holdings"), and the persons listed in Schedule I hereto, as such Schedule I
may be amended from time to time (collectively, the "Management Investors" and
each, individually, a "Management Investor").
W I T N E S S E T H:
WHEREAS, pursuant to a Stock and Asset Purchase Agreement, dated as of
April 26, 1996, as amended (the "Stock and Asset Purchase Agreement"), by and
among Rockwell International Corporation, a Delaware corporation ("Rockwell")
and ▇▇▇▇ Graphic Systems, Inc., a Delaware corporation and a wholly owned
subsidiary of Holdings (the "Company") the Company has, simultaneously with the
execution and delivery of this Agreement, directly or indirectly, acquired the
Graphic Systems business unit of Rockwell ("▇▇▇▇") through the purchase of all
of the capital stock of certain subsidiaries of Rockwell that constitute a part
of ▇▇▇▇ and certain assets and liabilities of certain subsidiaries of Rockwell
that constitute the remainder of ▇▇▇▇ (the "Acquisition"); and
WHEREAS, pursuant to the terms and subject to the conditions set forth in
this Agreement and in connection with providing equity financing for the
transactions contemplated by the Stock and Asset Purchase Agreement, each
Management Investor desires to subscribe for and purchase from Holdings, and
Holdings desires to issue and sell to such Management Investor, the number of
Management Shares (as hereinafter defined) set forth opposite such Management
Investor's name in Column A of Schedule I hereto. The aggregate purchase price
to be paid for the Management Shares to be acquired by each Management Investor
is set forth opposite such Management Investor's name in Column B of Schedule I
hereto (such Management Investor's "Purchase Price");
NOW, THEREFORE, in order to implement the foregoing and in consideration of
the mutual representations, warranties, covenants and agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
shall have the meanings ascribed to them below:
Acquisition: shall have the meaning set forth in the first WHEREAS clause
to this Agreement.
Agreement: shall have the meaning set forth in the preamble to this
Agreement.
Closing: shall have the meaning specified in Section 2.3 hereof.
Closing Date: shall have the meaning specified in Section 2.3 hereof.
Company: shall have the meaning specified in the first WHEREAS clause to
this Agreement.
Discretionary Options: shall have the meaning specified in Section 2.5(b)
hereof.
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of such similar federal statute.
Holdings: shall have the meaning specified in the preamble to this
Agreement.
Incentive Option Agreements: shall have the meaning specified in Section
2.5(b) hereof.
Incentive Options: shall have the meaning specified in Section 2.5(b)
hereof.
Management Investor(s): shall have the meaning set forth in the preamble to
this Agreement.
Management Note: shall have the meaning specified in Section 2.2 hereof.
Management Shares: shall mean Shares purchased by a Management Investor
from Holdings pursuant to this Agreement
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and/or (ii) pursuant to the exercise of an option granted under the Management
Stock Incentive Plan.
Management Stock Incentive Plan: shall have the meaning specified in
Section 2.5(b) hereof.
Performance Option Agreements: shall have the meaning specified in Section
2.5(b) hereof.
Performance Options: shall have the meaning specified in Section 2.5(b)
hereof.
Purchase Price: shall have the meaning set forth in the third WHEREAS
clause to this Agreement.
Rockwell: shall have the meaning specified in the first WHEREAS clause to
this Agreement.
Rule 144: shall have the meaning specified in Section 3.3 hereof.
SEC: shall mean the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
Securities Act: shall mean the Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
Shares: shall mean any shares of common stock, par value $.01 per share, of
Holdings, including, without limitation, all such shares issued in connection
with any employee benefit plan of Holdings or its subsidiaries, including the
Management Stock Incentive Plan.
Stockholders' Agreement: shall have the meaning specified in Section 2.3(c)
hereof.
Stock Pledge Agreement: shall have the meaning specified in Section 2.2
hereof.
Stock and Asset Purchase Agreement. The term "Stock and Asset Purchase
Agreement" shall have the meaning specified in the first WHEREAS clause to this
Agreement.
Stonington: shall have the meaning set forth in the Stockholders'
Agreement.
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ARTICLE II
SUBSCRIPTION FOR AND ISSUANCE OF SHARES
Section 2.1 Subscription for and Issuance of Shares. Pursuant to the terms
and subject to the conditions set forth in this Agreement, each Management
Investor hereby subscribes for and agrees to purchase, and Holdings hereby
agrees to issue and sell to each Management Investor on the Closing Date the
number of Management Shares set forth opposite such Management Investor's name
in Column A of Schedule I hereto at a purchase price of $100 per Management
Share. Each Management Investor shall pay the Purchase Price set forth opposite
such Management Investor's name in Column B of Schedule I hereto.
Section 2.2 Management Notes; Pledge of Management Shares. In consideration
for the Management Investor's subscription hereunder, Holdings will, subject to
the issuance of the note referred to in the next sentence, lend each Management
Investor funds to facilitate payment of the portion of the Purchase Price set
forth opposite such Management Investor's name in Column C of Schedule I hereto.
Each loan will be evidenced by a nonrecourse secured promissory note of the
Management Investor substantially in the form of the note attached hereto as
Exhibit A (as to each Management Investor, a "Management Note"). As collateral
security for the obligations of such Management Investor to pay the principal of
and interest on such Management Investor's Management Note, such Management
Investor hereby agrees to pledge to Holdings the number of Management Shares
being acquired hereunder by such Management Investor pursuant to the terms of a
Stock Pledge Agreement substantially in the form of the Stock Pledge Agreement
attached hereto as Exhibit B (the "Stock Pledge Agreement"), along with the
other collateral contemplated by the Stock Pledge Agreement. A duly executed and
delivered Management Note and Stock Pledge Agreement securing payment of such
Management Investor's Management Note shall be delivered to Holdings at the
Closing by each Management Investor borrowing a portion of the Purchase Price
from Holdings.
Section 2.3 The Closing. The closing (the "Closing") of the transactions
contemplated by this Article II shall take place at the offices of Wachtell,
Lipton, ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ immediately
prior to the consummation of the Acquisition pursuant to the Stock and Asset
Purchase Agreement. The date of such Closing is hereinafter referred to as the
"Closing Date."
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(a) At the Closing, Holdings shall deliver:
(i) to each Management Investor, against delivery of the Purchase
Price set forth opposite such Management Investor's name in Column B of
Schedule I hereto, duly issued stock certificates representing the total
number of Management Shares set forth opposite such Management Investor's
name in Column A of Schedule I hereto; and
(ii) to each Management Investor, against delivery of such Management
Investor's Management Note and Stock Pledge Agreement, cash equal to the
principal amount of such Management Investor's Management Note.
(b) At the Closing, each Management Investor shall deliver to
Holdings, against delivery to the Management Investor of stock certificates
representing the Management Shares to be purchased by such Management Investor,
(i) cash in the amount set forth opposite such Management Investor's name in
Column B of Schedule I hereto, (ii) a duly executed Management Note in the
amount set forth opposite such Management Investor's name in Column C of
Schedule I hereto, and (iii) a duly executed Stock Pledge Agreement.
(c) At the Closing, Holdings, ▇▇▇▇▇▇▇ ▇▇▇▇▇ KECALP L.P. 1994, the
Management Investors and Stonington will enter into a Stockholders' Agreement,
substantially in the form of the Stockholders' Agreement attached hereto as
Exhibit C (the "Stockholders' Agreement").
Section 2.4 Representations, Warranties and Covenants of the Management
Investors. Each of the Management Investors severally, but not jointly,
represents and warrants to Holdings and covenants with Holdings as follows:
(i) any Management Note to be issued by such Management Investor at
the Closing will, when issued and delivered in accordance with the terms
hereof, be duly and validly issued and be a valid and binding obligation of
such Management Investor, enforceable against such Management Investor in
accordance with its terms;
(ii) such Management Investor has full right, power and authority to
execute and deliver this Agreement, and, to the extent to be executed and
delivered by such Management Investor, the Stock Pledge Agreement, and to
perform such Management Investor's obligations hereunder and thereunder,
and this Agreement has been duly authorized, executed and delivered by such
Management Investor and is
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valid, binding and enforceable against such Management Investor in
accordance with its terms, and the Stock Pledge Agreement, if any, has been
duly authorized and, when executed and delivered, will be valid, binding
and enforceable against such Management Investor in accordance with its
terms; and
(iii) such Management Investor hereby represents and warrants that
except as disclosed to Holdings in writing prior to the date hereof, such
Management Investor is not on the date hereof, and will not be, at any time
between the date hereof and the Closing Date, entitled to any payments or
compensation of any kind from Rockwell or any of its subsidiaries
(including the subsidiaries to be acquired by ▇▇▇▇ Graphic Systems, Inc.
pursuant to the Acquisition) under any employment contract, severance
agreement or other compensation or bonus agreement or arrangement currently
in effect, which payments or compensation arise out of or are based upon
the execution, delivery or performance of the Stock and Asset Purchase
Agreement, this Agreement, the Stock Pledge Agreement or the Stockholders'
Agreement (in each case, including the transactions contemplated thereby).
Section 2.5 Representations, Warranties and Covenants of Holdings. (a)
Holdings represents and warrants to each of the Management Investors as follows:
(i) Holdings is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) Holdings has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and this
Agreement has been duly authorized, executed and delivered by Holdings and
is valid, binding and enforceable against Holdings in accordance with its
terms;
(iii) Holdings has full corporate power and authority to execute and
deliver the Stockholders' Agreement and the Stock Pledge Agreements and to
perform its obligations thereunder and such agreements have been duly
authorized by Holdings and will, when executed and delivered by Holdings,
be valid, binding and enforceable against Holdings in accordance with their
terms;
(iv) the Management Shares to be issued to such Management Investor
pursuant to this Agreement, when issued and delivered in accordance with
the terms hereof, will be
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duly and validly issued and, upon receipt of cash or other consideration in
an amount equal to the par value of such Management Shares, will be fully
paid and nonassessable; and
(v) none of the execution, delivery and performance of this Agreement,
the Stockholders' Agreement, and the Stock Pledge Agreements by Holdings
will conflict with Holdings' Certificate of Incorporation or By-Laws or
result in any material breach of any terms or provisions of, or constitute
a default under, any material contract, agreement or instrument to which
Holdings is a party or by which Holdings is bound.
(vi) after giving effect to the transactions contemplated by this
Agreement, the authorized capital of the Company will consist of 10,000,000
authorized Shares, of which 1,165,000 Shares will be issued and outstanding
immediately after the Closing, 7,500 authorized shares of nonvoting common
stock, par value $.01 per share, of Holdings, of which 7,500 shares will be
issued and outstanding immediately after the Closing, and 1,000,000
authorized shares of preferred stock, par value $.01 per share, of
Holdings, of which 100,000 shares will be designated as 6 1/2% Redeemable
Pay-in-Kind Preferred Stock and 47,500 shares of 6 1/2% Redeemable
Pay-in-Kind Preferred Stock will be issued and outstanding immediately
after the Closing. In addition, up to ______ Shares will have been reserved
for issuance under the Management Stock Incentive Plan. All of the
outstanding Shares will be duly authorized, and upon the issuance thereof
will be validly issued, fully paid and nonassessable.
(b) Holdings will establish a Management Stock Incentive Plan
substantially in the form attached hereto as Exhibit D (the "Management Stock
Incentive Plan"). Incentive options (the "Incentive Options") for a total of
______ Shares, performance options (the "Performance Options") for a total of
______ additional Shares and ______ discretionary stock options (the
"Discretionary Options") will initially be available for grant by Holdings. At
the closing of the Acquisition, the Management Investors will be granted
Incentive Options to purchase ______ Shares and Performance Options to purchase
______ Shares. The Incentive Option Agreements for Incentive Options granted at
the closing of the Acquisition will be substantially in the form of Exhibit A to
the Management Stock Incentive Plan (the "Incentive Option Agreements") and the
Performance Option Agreements for Performance Options granted at the closing of
the Acquisitions will be substantially in the form of Exhibit B to the
Management Stock Incentive Plan (the "Performance Option
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Agreements"). All Incentive Options and Performance Options granted at the
closing of the Acquisitions will have an exercise price of $100 per Share.
ARTICLE III
INVESTMENT REPRESENTATIONS OF THE MANAGEMENT INVESTORS
Section 3.1 Investment Intention; No Resales. Each Management Investor
represents and warrants that such Management Investor is acquiring his or her
Management Shares for investment purposes only, solely for his or her own
account and not with a view to, or for resale in connection with, the
distribution or other disposition thereof or with any present intention of
distributing or reselling any Management Shares thereof, except for such
distributions and dispositions as are both explicitly permitted hereunder and
under the Stockholders' Agreement and effected in compliance with the Securities
Act and the rules and regulations thereunder and all applicable state
securities, or "blue sky," laws. Each Management Investor agrees and
acknowledges that such Management Investor will not, directly or indirectly,
offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of any
Management Shares, or solicit any offers to purchase or otherwise acquire or
take a pledge of any Management Shares, other than transfers, sales,
assignments, pledges, hypothecations or other dispositions explicitly permitted
by Articles II and III of the Stockholders' Agreement and provided that any such
transfer, sale, assignment, pledge, hypothecation or other disposition is in
accordance with the terms and provisions of such Articles and (i) the transfer,
sale, assignment, pledge, hypothecation or other disposition is pursuant to an
effective registration statement under the Securities Act and has been
registered under all applicable state securities, or "blue sky," laws, or (ii)
such Management Investor shall have furnished Holdings with an opinion of
counsel (which counsel and the form and substance of which opinion shall be
reasonably satisfactory to Holdings), to the effect that no such registration is
required because of the availability of an exemption from registration under the
Securities Act and the rules and regulations in effect thereunder and under all
applicable state securities, or "blue sky," laws.
Section 3.2 Legends. Each certificate representing Management Shares shall
bear the legend set forth in Section 2.6 of the Stockholders' Agreement.
Section 3.3 Stock Unregistered. Each Management Investor acknowledges and
represents that such Management Investor has been advised that (a) the
Management Shares have not
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been registered under the Securities Act; (b) the Management Shares must be held
for an indefinite period and such Management Investor must continue to bear the
economic risk of the investment in the Management Shares unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available; (c) it is not anticipated that there will be any
public market for the Management Shares; (d) Rule 144 promulgated under the
Securities Act ("Rule 144") is not currently available with respect to the sales
of any securities of Holdings, and Holdings has made no covenant to make such
Rule 144 available; (e) if and when the Management Shares may be disposed of
without registration in reliance on Rule 144, such disposition can be made only
in limited amounts in accordance with the terms and conditions of such Rule 144;
(f) if the Rule 144 exemption is not available, public offer or sale without
registration will require the availability of an exemption under the Securities
Act; (g) a restrictive legend or legends in the forms set forth herein and in
the Stockholders' Agreement shall be placed on the certificates representing the
Management Shares; and (h) a notation shall be made in the appropriate records
of Holdings indicating that the Management Shares are subject to restrictions on
transfer and, if Holdings should at some time in the future engage the services
of a securities transfer agent, appropriate stop-transfer instructions may be
issued to such transfer agent with respect to the Management Shares.
Section 3.4 Rule 144. If Holdings shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, Holdings will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder to the extent
required from time to time to enable each Management Investor to sell Management
Shares without registration under the Securities Act within the limitations of
the exemptions provided by (i) Rule 144, as such Rule 144 may be amended from
time to time, or (ii) any similar or successor rule or regulation hereafter
adopted by the SEC. If any Management Shares are disposed of in accordance with
Rule 144 or any similar or successor rule or regulation, each Management
Investor disposing of Management Shares shall deliver to Holdings at or prior to
the time of such disposition an executed copy of Form 144 (if required by Rule
144) or such other form or forms required by any such similar or successor rule
or regulation and such other documentation as Holdings may require in connection
with such disposition. Notwithstanding anything to the contrary contained in
this Section 3.4, Holdings may deregister any of its securities under Section 12
of the Exchange Act if it is then permitted to do so pursuant to
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the Exchange Act and the rules and regulations in effect thereunder.
Section 3.5 Additional Investment Representations. Each Management Investor
represents and warrants that (a) such Management Investor's financial situation
is such that such Management Investor can afford to bear the economic risk of
holding the Management Shares for an indefinite period of time and suffer
complete loss of such Management Investor's investment in the Management Shares;
(b) such Management Investor's knowledge and experience in financial and
business matters are such that such Management Investor is capable of evaluating
the merits and risks of such Management Investor's investment in the Management
Shares, or such Management Investor has been advised by a purchaser
representative (as such term is defined in Rule 501(n) of the General Rules and
Regulations promulgated under the Securities Act) possessing such knowledge and
experience; (c) such Management Investor understands that the Management Shares
are a speculative investment which involve a high degree of risk of loss of such
Management Investor's investment therein, that there are substantial
restrictions on the transferability of the Management Shares and that on the
Closing Date and for an indefinite period following the Closing there will be no
public market for the Management Shares and, accordingly, it may not be possible
to liquidate such Management Investor's investment in Holdings at all, including
in case of emergency; (d) such Management Investor and such Management
Investor's representatives, including such Management Investor's professional,
tax and other advisors, have carefully reviewed the financial and other
information with respect to ▇▇▇▇, the Company and Holdings (including with
respect to the Acquisitions) supplied to them and such Management Investor
understands and has taken cognizance of (or has been advised by such Management
Investor's representatives as to) all the risks related to an investment in the
Management Shares; (e) in making such Management Investor's decision to invest
in the Management Shares hereunder, such Management Investor has relied upon
independent investigations made by such Management Investor and, to the extent
believed by such Management Investor to be appropriate, such Management
Investor's representatives, including such Management Investor's own
professional, tax and other advisors; (f) such Management Investor and such
Management Investor's representatives have been given the opportunity to examine
all documents and to ask questions of, and to receive answers from, Holdings and
its representatives concerning the terms and conditions of the investment in the
Management Shares and to obtain any additional information necessary to verify
the accuracy of the information supplied to them, and no representations have
been made to such Management Investor or such representatives concerning the
Management Shares, ▇▇▇▇,
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the Company, Holdings, their respective subsidiaries, their businesses or
prospects or other matters, except as set forth herein; and (g) such Management
Investor is an officer or key employee of Holdings or one of its subsidiaries or
is otherwise currently engaged as a senior executive or consultant or has
significant business experience in the printing press manufacturing or similar
business and, in any such case, expects, after the Acquisition, to be an officer
or key employee of, director of, or consultant to, Holdings or one or more of
its subsidiaries.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Binding Effect. The provisions of this Agreement shall be
binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
Section 4.2 No Right of Employment. Neither this Agreement nor any purchase
or sale of Management Shares pursuant hereto shall create, or be construed or
deemed to create, any right of employment in favor of any Management Investor or
any other person by Holdings or any of its subsidiaries.
Section 4.3 Recapitalizations, Exchanges, Etc. Affecting Shares. The
provisions of this Agreement regarding Management Shares shall apply to any and
all shares of capital stock of Holdings or any successor or assign of Holdings
(whether by merger, consolidation, sale of assets, reorganization or otherwise)
which may be issued in respect of, in exchange for, or in substitution of the
Management Shares by reason of any stock dividend, stock split, stock issuance,
reverse stock split, combination, recapitalization, reclassification, merger,
consolidation or otherwise. Upon the occurrence of any of such events, amounts
hereunder shall be appropriately adjusted. Subject only to the provisions of the
preceding sentence, nothing contained in this Agreement shall prohibit or
restrict Holdings from taking any corporate action, including, without
limitation, declaring any dividend (whether in cash or stock) or engaging in any
corporate transaction of any kind, including, without limitation, any merger,
consolidation, liquidation or sale of assets.
Section 4.4 Waiver and Amendment. Any party hereto may waive its rights
under this Agreement at any time, and Holdings may waive its rights under this
Agreement with respect to any Management Investor at any time, and no such
waiver shall operate to waive Holdings' rights under this Agreement
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with respect to any other Management Investor. Any agreement on the part of any
such party to any such waiver shall be valid only if set forth in an instrument
in writing signed by such party. This Agreement may be amended only by a written
instrument signed by Holdings, and by Management Investors owning a majority of
the then outstanding Management Shares.
Section 4.5 Notices. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly given
when delivered, if delivered personally, or when deposited in the mail if sent
by registered or certified mail, return receipt requested, postage prepaid, and
when received if delivered otherwise, to the party to whom it is directed:
(a) If to Holdings, to it at the following address:
GGS Holdings, Inc.
c/o Stonington Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(b) If to any of the Management Investors, to such Management Investor
at the address set forth below under such Management Investor's
signature
or at such other address as the parties hereto shall have specified by notice in
writing to the other parties.
Section 4.6 Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to the principles of conflicts of law.
Section 4.7 Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein and in the
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Stock and Asset Purchase Agreement, the Stock Pledge Agreements, the Management
Notes, the Stockholders' Agreement, the Management Stock Incentive Plan, the
Incentive Option Agreements and the Performance Option Agreements and the other
agreements referred to in such agreements. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter other than such agreements and understandings set forth in the Stock and
Asset Purchase Agreement (except as modified pursuant hereto), the Stock Pledge
Agreements, the Management Notes, the Stockholders' Agreement, the Management
Stock Incentive Plan, the Incentive Option Agreements and the Performance Option
Agreements and the other agreements referred to in such agreements.
Section 4.8 Descriptive Headings, Etc. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires, (i) words of any gender shall be deemed to include each
other gender; (ii) words using the singular or plural number shall also include
the plural or singular number, respectively; and (iii) references to "hereof,"
"herein," "hereby" and similar terms shall refer to this entire Agreement unless
the context otherwise requires.
Section 4.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 4.10 Expenses. Holdings shall pay the legal fees and the expenses
of the Management Investors reasonably incurred in connection with the
preparation and negotiation of this Agreement, the Stock Pledge Agreements, the
Management Notes and the Stockholders' Agreement; provided that Holdings shall
not be obligated pursuant to this Agreement to pay the fees and expenses of more
than one counsel for all of the Management Investors.
Section 4.11 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to
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effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
Section 4.12 Further Assurances. The parties hereto shall from time to time
execute and deliver all such further documents and do all acts and things as the
other party may reasonably require to effectively carry out or better evidence
or perfect the full intent and meaning of this Agreement.
Section 4.13 Waiver of Jury Trial. Each of Holdings and each of the
Management Investors hereby irrevocably waives all right to a trial by jury in
any action, proceeding or counterclaim arising out of or relating to this
Agreement or the transactions contemplated hereby.
Section 4.14 Survival of Covenants. Holdings and the Management Investors
hereby agree that the applicable provisions of this Agreement, including without
limitation, Sections 2.4 and 2.5, shall survive and remain in full force and
effect following the Closing.
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