Exhibit 10.26
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this
"Agreement") is made as of September 1, 1996 by
and among XxXxxxxxx Technologies AB, a
corporation organized under the laws of Sweden
(the "Company"), XxXxxxxxx Technologies, Inc., a
corporation organized under the laws of the
State of Delaware, U.S.A. ("XxXxxxxxx"), AB
Wilh. Xxxxxx, a corporation organized under the
laws of Sweden ("Xxxxxx"), and Tikkurila Oy, a
corporation organized under the laws of Finland
("Tikkurila"). McWhorter, Becker, and Tikkurila
are hereinafter sometimes collectively referred
to, together with their respective subsidiaries,
as "Stockholders".
Prior hereto, the Company was
organized as a wholly-owned subsidiary of Xxxxxx
as an inactive shelf company. Thereafter, the
Company acquired all of the capital stock of
XxXxxxxxx Technologies Limited, a corporation
organized under the laws of England ("XxXxxxxxx
England"), and of XxXxxxxxx Technologies Oy, a
corporation organized under the laws of Finland
("XxXxxxxxx Finland"). Thereafter, the Company
issued to each of Tikkurila, Xxxxxx, and
XxXxxxxxx 360,000 shares of its capital stock in
exchange for 36 million SEK from each such
company. Thereafter, the Company contributed 20
million SEK to each of XxXxxxxxx Finland and
XxXxxxxxx England in respect of its share
capital. Thereafter, (i) the Company acquired
substantially all of the assets of the resin
business of Soab AB, a corporation organized
under the laws of Sweden and a wholly-owned
subsidiary of Xxxxxx ("Soab AB"), located in
Molndal, Sweden in exchange for 35 million SEK
in cash and an obligation to pay an additional
amount of 52 million SEK with interest, (ii)
XxXxxxxxx Finland acquired (x) substantially all
of the assets of the resin business of Tikkurila
located in Vantaa, Finland in exchange for 33
million SEK in cash and an obligation to pay an
additional amount of 29 million SEK with
interest and (y) certain intellectual property
of Kemira Coatings Limited, a corporation
organized under the laws of England and a
wholly-owned subsidiary of Tikkurila ("Kemira
Coatings") in exchange for an obligation to pay
20 million SEK, and (iii) XxXxxxxxx England
acquired substantially all of the assets of the
resin business of Kemira Coatings located in
Bury, England in exchange for 10 million SEK in
cash and an obligation to pay an additional
amount of 15.3 million SEK with interest. The
amounts set forth in this paragraph are
represented in "SEK" but may be paid in other
currency.
Concurrent with the execution of
this Agreement the parties and others are
executing those agreements set forth in
paragraph 8 below.
The Company and the Stockholders
desire to enter into this Agreement for the
purposes, among others, of (i) establishing
the composition of the Company's Board of Directors
(the "Board"), (ii) assuring continuity in the
management and ownership of the Company, (iii)
limiting the manner and terms by which the
Stockholders' capital stock of the Company may
be transferred, and (iv) providing for the
noncompetition by the Stockholders with the
Company.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other
good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,
the parties to this Agreement hereby agree as
follows:
1. Board of Directors.
(a) From and after the Closing (as
defined in the Purchase Agreement) and until the
provisions of this paragraph 1 cease to be
effective, each Stockholder shall vote all of
its Stockholder Shares (as defined below) and
shall take all other necessary or desirable
actions within its control, and the Company
shall take all necessary and desirable actions
within its control (including, without
limitation, calling special board and
stockholder meetings), so that:
(i) the authorized number of
directors on the Board shall be established at
six directors plus an additional number of
directors sufficient to satisfy statutorily
required directorships;
(ii) two representatives
designated by each Stockholder shall be elected
to the Board; provided, however, that in the
event XxXxxxxxx owns a majority of the capital
stock of the Company, each of Tikkurila and
Xxxxxx shall (provided each owns at least 10% of
the outstanding shares of capital stock of the
Company) designate one representative to be
elected to the Board and XxXxxxxxx shall
designate four representatives to be elected to
the Board;
(iii) the composition of the
board of directors of each of the Company's
subsidiaries (a "Sub Board") with respect to the
Stockholder's nominees shall be the same as that
of the Board;
(iv) the Chairman of the
Board shall be designated by XxXxxxxxx and the
Chairman of the Board shall cast the deciding
vote in event of a tie in a vote by the Board;
(v) the removal from the
Board or a Sub Board (with or without cause) of
any representative designated by a
Stockholder hereunder shall be at the written request of the
Stockholder making such designation; and
(vi) in the event that any
representative designated by a Stockholder
hereunder for any reason ceases to serve as a
member of the Board or a Sub Board during his
term of office, the resulting vacancy on the
Board or the Sub Board shall be filled by a
representative designated by the Stockholder
making such designation.
(b) The Company shall pay the
reasonable out-of-pocket expenses incurred by
each director designated by a Stockholder in
connection with attending the meetings of the
Board, any Sub Board and any committee thereof.
(c) If any party fails to
designate a representative to fill a
directorship pursuant to the terms of this
paragraph 1, the election of a person to such
directorship shall be accomplished in accordance
with the Company's bylaws and applicable law.
(d) "Stockholder Shares" means (i)
any shares of any class or series of capital
stock of the Company purchased or otherwise
acquired by any Stockholder, (ii) any equity
securities issued or issuable directly or
indirectly with respect to the capital stock of
the Company by way of stock dividend or stock
split or in connection with a combination of
shares, recapitalization, merger, consolidation
or other reorganization and (iii) any securities
or instruments that may be converted into or
exchangeable for any equity securities.
1A. Stockholder Policy. The
Stockholders shall adopt an initial policy of
causing the Company to distribute to the
Stockholders 30% of the Company's annual net
income; provided, however, that the Stockholders
may revise such policy at their discretion.
2. Transfer and Issuance of
Stockholder Shares.
(a) Transfer of Stockholder
Shares. No Stockholder shall sell, transfer,
assign, pledge or otherwise dispose of (a
"Transfer") any interest in any Stockholder
Shares except pursuant to the provisions of this
paragraph 2. Each Stockholder agrees not to
consummate any Transfer until 60 days after the
later of the delivery to the Company and the
other Stockholders of such Stockholder's Offer
Notice, unless the parties to the Transfer have
been finally determined pursuant to this
paragraph 2 prior to the expiration of such
60-day period (the "Election Period").
(b) First Offer Right. At least
60 days prior to making any Transfer of any
Stockholder Shares, the transferring Stockholder
(the "Transferring Stockholder") shall deliver a
written notice (the "Offer Notice") to the
Company and the other Stockholders (the "Other
Stockholders"). The Offer Notice shall disclose
in reasonable detail the proposed number of
Stockholder Shares to be transferred and the
proposed terms and conditions of the Transfer.
XxXxxxxxx may elect to purchase all or a portion
of the Stockholder Shares specified in the Offer
Notice at the price and on the terms specified
therein by delivering written notice of such
election to the Transferring Stockholder and the
Other Stockholders as soon as practical but in
any event within 30 days after the delivery of
the Offer Notice. If XxXxxxxxx has not elected
to purchase all of the Stockholder Shares within
such 30-day period, each Other Stockholder may
elect to purchase all (but not less than all) of
its Pro Rata Share (as defined below) of the
Stockholder Shares specified in the Offer Notice
at the price and on the terms specified therein
by delivering written notice of such election to
the Transferring Stockholder as soon as
practical but in any event within 45 days after
delivery of the Offer Notice. Any Stockholder
Shares not elected to be purchased by the end of
such 45-day period shall be reoffered for the
15- day period prior to the expiration of the
Election Period by the Transferring Stockholder
on a pro rata basis to the Other Stockholders
who have elected to purchase their Pro Rata
Share. If XxXxxxxxx or any Other Stockholders
have elected to purchase Stockholder Shares from
the Transferring Stockholder, the transfer of
such shares shall be consummated as soon as
practical after the delivery of the election
notices, but in any event within 90 days after
the expiration of the Election Period. To the
extent that XxXxxxxxx and the Other Stockholders
have not elected to purchase all of the
Stockholder Shares being offered, the
Transferring Stockholder may, within 180 days
after the expiration of the Election Period and
subject to the provisions of subparagraph (c)
below, transfer such Stockholder Shares to one
or more third parties at a price no less than
the price per share specified in the Offer
Notice and on other terms no more favorable to
the transferees than offered to XxXxxxxxx and
the Other Stockholders in the Offer Notice. The
purchase price specified in any Offer Notice
shall be payable solely in cash at the closing
of the transaction or in installments over time.
Each Stockholder's "Pro Rata Share" shall be
based upon such Stockholder's proportionate
ownership of all Stockholder Shares on a
fully-diluted basis.
(c) Preemptive Right. If the
Board members nominated by XxXxxxxxx, on behalf
of the Stockholders, determine that the Company
needs, requires, or desires additional capital
for the purpose of major capital improvements,
expansions, or acquisitions, the Stockholders
shall authorize the issuance and sale to XxXxxxxxx
of shares of capital stock in exchange
therefor. Any issuances and sales of capital
stock other than exclusively to XxXxxxxxx
pursuant to the previous sentence shall be
determined by all the Stockholders. In
addition, if the Stockholders otherwise
authorize the issuance or sale of any shares of
capital stock, the Company shall first offer to
sell XxXxxxxxx such shares of capital stock.
The number of shares of capital stock to be
issued, if any, pursuant to this clause (c) by
the Company shall be sufficient to cause
XxXxxxxxx'x fully-diluted percentage ownership
of the capital stock of the Company to be equal
to (x) XxXxxxxxx'x proportion of the Company's
stockholders' equity, as set forth on the
Company's most recent quarterly balance sheet,
plus the fair market value of the amount of
capital contributed by XxXxxxxxx (which in the
case of acquisitions of ongoing business shall
mean the total consideration paid or to be paid
therefor), in cash or kind, divided by (y) the
Company's stockholders' equity, as set forth on
the Company's most recent quarterly balance
sheet, plus the fair market value of the amount
of capital contributed by XxXxxxxxx, in cash or
kind; provided, however, that notwithstanding
the foregoing, the Company shall use reasonable
efforts to maintain a target ratio of
stockholders' equity to total assets (each as
set forth on a then current balance sheet of the
Company) of not less than 40%.
(d) Sale of the Company. If the
Board and holders of a majority of the shares of
capital stock of the Company then outstanding
approve the sale of the Company to an
independent third party (whether by merger,
consolidation, sale of all or substantially all
of its assets, or sale of all or substantially
all of the outstanding shares of capital stock)
(an "Approved Sale"), each Stockholder shall
consent to, vote for, and raise no objections
against the Approved Sale and, if the Approved
Sale is structured as a sale of stock, shall
agree to sell all Stockholder Shares held by
such Stockholder on the terms and conditions
approved by the Board and the holders of a
majority of the shares of capital stock of the
Company then outstanding, and each Stockholder
shall take all necessary and desirable actions
in connection with the consummation of an
Approved Sale. For purposes of this paragraph
2(d), an "independent third party" is any person
who (i) alone or together with one or more other
persons, does not own 5% or more of the
outstanding shares of capital stock on a
fully-diluted basis, and (ii) is not
controlling, controlled by, or under common
control with any owner of 5% or more of the
outstanding shares of capital stock on a
fully-diluted basis.
(e) Permitted Transfers. The
restrictions contained in this paragraph 2 shall
not apply with respect to any Transfer of
Stockholder Shares by any Stockholder to any
other person controlling, controlled by, or
under common control with such
Stockholder (collectively referred to herein as "Permitted
Transferees"); provided that the restrictions
contained in this paragraph 2 shall continue to
be applicable to the Stockholder Shares after
any such Transfer and provided further that the
transferees of such Stockholder Shares shall
have agreed in writing to be bound by the
provisions of this Agreement affecting the
Stockholder Shares so transferred.
3. Legend. Each certificate
evidencing Stockholder Shares and each
certificate issued in exchange for or upon the
transfer of any Stockholder Shares shall be
stamped or otherwise imprinted with a legend in
substantially the following form:
"The securities represented by this
certificate are subject to a Stockholders
Agreement dated as of _________, among the
issuer of such securities (the "Company") and
the Company's stockholders. A copy of such
Stockholders Agreement will be furnished without
charge by the Company to the holder hereof upon
written request."
The Company shall imprint such
legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof.
4. Transfer. Prior to
transferring any Stockholder Shares to any
person or entity, the transferring Stockholder
shall cause the prospective transferee to
execute and deliver to the Company and the other
Stockholders a counterpart of this Agreement.
5. Put Arrangement.
(a) At any time during the Put
Exercise Period, each of Xxxxxx and Tikkurila
shall have the right to require XxXxxxxxx to
purchase all but not less than all of its
Stockholder Shares at the Put Price by
delivering a written notice to XxXxxxxxx (each,
a "Put Notice"). The "Put Exercise Period"
shall be the 180- day period following the date
XxXxxxxxx acquires a majority of the outstanding
shares of capital stock of the Company on a
fully-diluted basis.
(b) Upon the delivery of each Put
Notice, McWhorter, Becker, and Tikkurila shall
in good faith promptly determine the Put Price
as provided hereunder, and within 180 days after
the Put Price has been determined, XxXxxxxxx
will purchase and each of Xxxxxx and Tikkurila,
as applicable, will sell its Stockholder Shares
at a mutually agreeable time and place (the "Put
Closing").
(c) At the Put Closing, each of
Xxxxxx and Tikkurila, as applicable, shall
deliver to XxXxxxxxx duly executed instruments
transferring its Stockholder Shares to XxXxxxxxx
against payment of
the appropriate Put Price by
cashier's or certified checks payable to each of
Xxxxxx and Tikkurila or by wire transfer of
immediately available funds to accounts
designated by each of Xxxxxx and Tikkurila.
(d) The "Put Price" of each of
Xxxxxx'x and Tikkurila's total number of
Stockholder Shares to be purchased by XxXxxxxxx
shall mean 5.5 multiplied by (x) one half of the
Company's consolidated earnings before interest,
taxes, depreciation, and amortization ("EBITDA")
for the preceding eight quarters as set forth on
the Company's income statements relating to such
quarters less long-term indebtedness, multiplied
by (y) the percentage ownership of all
Stockholder Shares owned on a fully-diluted
basis by Xxxxxx and Tikkurila, respectively.
(e) The terms of this paragraph 5
are subject to the terms of paragraph 6(b) in
the event a single capital contribution event
causes either Xxxxxx or Tikkurila's percentage
ownership of the capital stock of the Company to
fall below 10%.
6. Call Arrangements.
(a) Fifth Anniversary.
(i) In the event XxXxxxxxx
owns less than a majority of the outstanding
shares of capital stock on a fully-diluted basis
on the fifth anniversary hereof, at any time
during the Call Exercise Period, XxXxxxxxx shall
have the right to purchase pro rata from Xxxxxx
and Tikkurila a sufficient number of Stockholder
Shares held by Xxxxxx and Tikkurila at the Call
Price in order that following such purchase
XxXxxxxxx shall own 51% of the outstanding
capital stock of the Company on a fully-diluted
basis. XxXxxxxxx shall exercise its right by
delivering written notice to Xxxxxx and
Tikkurila (the "Call Notice"). Each "Call
Exercise Period" shall be the 180-day period
following the fifth anniversary of the date
hereof.
(ii) Upon delivery of the
Call Notice, McWhorter, Becker, and Tikkurila
shall in good faith promptly determine the Call
Price hereunder, and within 180 days after the
Call Price has been determined, XxXxxxxxx will
purchase and Xxxxxx and Tikkurila will sell the
Stockholder Shares as set forth in the Call
Notice at a mutually agreeable time and place
(the "Call Closing").
(iii) At the Call Closing,
each of Xxxxxx and Tikkurila, as applicable,
shall deliver to XxXxxxxxx duly executed
instruments transferring its Stockholder Shares
to XxXxxxxxx, against payment of the appropriate
Call Price by
cashier's or certified checks payable to each of Xxxxxx and Tikkurila or by
wire transfer of immediately available funds to accounts designated by each
of Xxxxxx and Tikkurila.
(iv) The "Call Price" of the
number of shares of each of Xxxxxx'x and
Tikkurila's Stockholder Shares to be purchased
by XxXxxxxxx shall mean 6.5 multiplied by (x)
one-half the Company's consolidated EBITDA for
the preceding eight quarters as set forth on the
Company's income statements relating to such
quarters less long-term indebtedness, multiplied
by (y) a percentage equal to the number of
Stockholder Shares to be purchased by XxXxxxxxx
pursuant to that Section 6(a) from Xxxxxx and
Tikkurila, respectively, divided by the total
number of Stockholder Shares outstanding.
(b) Supermajority.
(i) In the event either
Tikkurila or Xxxxxx owns 10% or less of the
outstanding shares of capital stock of the
Company, XxXxxxxxx shall have the right to
purchase from each of Xxxxxx and Tikkurila all
of its shares, and each of Xxxxxx and Tikkurila
shall have the right to sell to XxXxxxxxx all of
its shares, on the terms set forth in this
paragraph 6(b) (the "Supermajority Put/Call").
XxXxxxxxx, on the one hand, and Tikkurila or
Xxxxxx, on the other hand, shall exercise their
rights by delivering written notice to the other
parties hereto (the "Supermajority Put/Call
Notice").
(ii) Upon delivery of the
Supermajority Put/Call Notice, McWhorter,
Becker, and Tikkurila, as applicable, shall in
good faith promptly determine the Supermajority
Put/Call Price hereunder, and within 180 days
after the Supermajority Put/Call Price has been
determined, XxXxxxxxx will purchase and Xxxxxx
and Tikkurila will sell the Stockholder Shares
as set forth in the Supermajority Put/Call
Notice at a mutually agreeable time and place
(the "Supermajority Put/Call Closing").
(iii) At the Supermajority
Put/Call Closing, each of Xxxxxx and Tikkurila,
as applicable, shall deliver to XxXxxxxxx duly
executed instruments transferring its
Stockholder Shares to XxXxxxxxx, against payment
of the appropriate Supermajority Put/Call Price
by cashier's or certified checks payable to each
of Xxxxxx and Tikkurila or by wire transfer of
immediately available funds to accounts
designated by each of Xxxxxx and Tikkurila.
(iv) The "Supermajority Put/Call Price" of each of Xxxxxx'x and
Tikkurila's Stockholder Shares to be purchased by XxXxxxxxx shall mean the
sum of:
with respect to the Stockholder
Shares that cause Tikkurila or Xxxxxx to own no
less than 10% of the outstanding capital stock
of the Company, 6.0 multiplied by (x) one- half
of the Company's consolidated EBITDA for the
preceding eight quarters as set forth on the
Company's income statements relating to such
quarters less long-term indebtedness, multiplied
by (y) the percentage ownership of all
Stockholder Shares owned by Xxxxxx and
Tikkurila, respectively; and
with respect to the Stockholder
Shares to be purchased and sold that cause
either of Tikkurila or Xxxxxx to own less than
10% of the outstanding capital stock of the
Company, 8.0 multiplied by (x) one-half of the
Company's consolidated EBITDA for the preceding
eight quarters as set forth on the Company's
income statements relating to such quarters less
long-term indebtedness, multiplied by (y) the
percentage ownership of all Stockholder Shares
owned by Xxxxxx and Tikkurila, respectively.
For example, if Xxxxxx and Tikkurila each own 12% of the outstanding capital
stock of the Company, and additional capital is to be contributed by
XxXxxxxxx (in exchange for the issuance to XxXxxxxxx of capital stock), and as
a result Xxxxxx and Tikkurila's percentage ownership would fall to 8%, and
Tikkurila, Xxxxxx or XxXxxxxxx choose to exercise the Supermajority Put/Call
pursuant to this paragraph 6, then the multiple that would be used pursuant
to the preceding clauses would be (i) 6.0 for the Stockholder Shares that
caused each of Xxxxxx and Tikkurila's percentage ownership to fall from 12%
to 10%, and (ii) 8.0 for the Stockholder Shares that caused each of
Xxxxxx and Tikkurila's percentage ownership to fall from 10% to 8%.
7. Transfers in Violation of Agreement. Any Transfer or
attempted Transfer of any Stockholder Shares in violation of any provision of
this Agreement shall be void, and the Company shall not record such Transfer
on its books or treat any purported transferee of such Stockholder Shares as
the owner of such shares for any purpose.
8. Concurrent Agreements. Concurrently with the execution of this
Agreement, the following agreements are being executed:
a. the Asset Purchase Agreement by and between Kemira
Coatings and XxXxxxxxx England, relating to certain Bury,
England assets and liabilities,
b. the Asset Purchase Agreement by and
between Tikkurila and XxXxxxxxx Finland,
relating to certain Vantaa, Finland assets and liabilities,
c. the Asset Purchase Agreement by and
among Xxxxxx, Soab AB, and the Company, relating
to certain Molndal, Sweden assets and liabilities,
d. the Ground Lease and Purchase Option
Agreement by and between Tikkurila and the
Company relating to the Vantaa, Finland real property,
e. the Services Agreement by and between Tikkurila and
XxXxxxxxx Finland relating to the Vantaa, Finland facility,
f. Lease granted by Kemira Coatings to
XxXxxxxxx England relating to the Bury, England
real property and facility,
g. the Services Agreement by and
between Kemira Coatings and XxXxxxxxx England
relating to the Bury, England real property and facility,
h. the Supply Agreement by and between
Tikkurila and XxXxxxxxx Finland,
i. the supply letter agreements by
Tikkurila, Xxxxxx and Kemira Coatings in favor
of the Company,
j. Technology License Agreement by and
between XxXxxxxxx and the Company, relating to
the licensing by the Company of certain of
XxXxxxxxx'x technologies, and
k. Technology License Agreement by and
among XxXxxxxxx, the Company, XxXxxxxxx Finland,
and XxXxxxxxx England, relating to the licensing
by XxXxxxxxx of all of the Company's, XxXxxxxxx
Finland's, and XxXxxxxxx England's technologies.
9. Noncompetition. Each Stockholder acknowledges and agrees with
the Company that the Company would be irreparably damaged if such Stockholder
were to become affiliated or otherwise involved with any person or entity
competing with the Company or engaged in a similar business. Each such
Stockholder accordingly covenants and agrees with the Company that during the
period
commencing with the date of this Agreement and ending on the third
anniversary of the date such Stockholder holds 10% or less of the outstanding
shares of capital stock of the Company on a fully-diluted basis (the
"Noncompetition Period"), such Stockholder will not, directly or indirectly,
either for itself or for any other individual, corporation, partnership,
joint venture, or other entity, participate in any business (including,
without limitation, any division, group or franchise of a larger
organization) in Europe which engages or which proposes to engage in the
promotion, development, sale, distribution, or production of products sold by
the resin businesses of Soab AB, Tikkurila, or Kemira Coatings on the date
hereof. For purposes of this Agreement, the term "participate in" will mean
having any direct or indirect interest in any corporation, partnership, joint
venture, or other entity, whether as a stockholder, partner, joint venturer,
creditor, or otherwise; provided however that the beneficial ownership of less
than 10% of the fully-diluted equity of an entity shall not constitute
"participation" for purposes of this paragraph 9.
Each such Stockholder further covenants and agrees with the Company
that during the Noncompetition Period in the event that such Stockholder
acquires, directly or indirectly, any business or assets ("Competing Assets")
which engage in Europe in the promotion, development, sale, distribution, or
production of products sold by the resin businesses of Soab AB, Tikkurila, or
Kemira Coatings on the date hereof, such Stockholder shall transfer such
Competing Assets within 12 months of their acquisition to an independent
third party, provided such Stockholder shall offer to sell any of such
Competing Assets to the Company on the same terms and conditions as
offered to third parties and the Company shall have the right of first
refusal to purchase all or a portion of the Competing Assets on such
terms and conditions.
10. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by each of the Company and the
Stockholders. The failure of any party to enforce any of the provisions of
this Agreement shall in no way be construed as a waiver of such provisions and
shall not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
11. Severability. Whenever possible, each provision of this
Agreement shall 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 shall not affect any other
provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
12. Entire Agreement. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes
and preempts 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.
13. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
14. Notices. Any notice provided for in this Agreement shall be
in writing and shall be either personally delivered, or mailed first class
mail (postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any
subsequent holder of Stockholder Shares subject to this Agreement at such
address as indicated by the Company's records, or at such address or
to the attention of such other person as the recipient party has specified by
prior written notice to the sending party. Notices will be deemed to have
been given hereunder when delivered personally, seven days after deposit
in the mail and three days after deposit with a reputable overnight courier
service. The Company's address is:
XxXxxxxxx Technologies AB
Xxx 00
X-000 00 Xxxxxxx, Xxxxxx
00. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Sweden without giving effect to
any choice or conflict of law provision or rule (whether of Sweden or any
other jurisdiction) that would cause the application of the laws of
any jurisdiction other than Sweden. Any dispute in connection with this
Agreement shall be finally settled by arbitration in Stockholm in
accordance with the Rules of the Arbitration Institute of the Stockholm
Chamber of Commerce. The arbitral tribunal shall be composed of three
members. The arbitration proceeding shall be conducted in the English language.
16. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
XxXXXXXXX TECHNOLOGIES AB
By: /s/ Xxxx X. Xxxxxx
Its: Authorized Signatory
XxXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
Its: Vice President, Corporate Development
AB XXXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxxxx
Its: Authorized Signatory
TIKKURILA OY
By: Xxxxx Xxxxxxxxx and Xxxx Katajavuor
Its: Authorized Signatories
