EXHIBIT 10.11
MANAGEMENT STOCK AGREEMENT
THIS MANAGEMENT STOCK AGREEMENT is made as of September 29, 1997 by
and between Xxxxx Holdings, Inc., a Nevada corporation (the "Company"), and
Xxxxxxx X. Xxxxxxx (the "Manager").
Manager is a management employee of Xxxxx Horticulture, Inc., a direct
subsidiary of the Company. The Company and Manager desire to enter into an
agreement by which Manager will purchase, and the Company will sell, the number
of shares of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), set forth on Schedule A hereto. All of such shares of Common Stock and
all shares of Common Stock hereafter acquired by Manager in respect of such
shares are referred to herein as "Management Stock." Certain definitions are
set forth in paragraph 7 of this Agreement.
The parties hereto agree as follows:
1. Purchase and Sale of Management Stock.
(a) Upon execution of this Agreement, Manager will purchase, and the
Company will sell, the number of shares of Common Stock set forth on Schedule A
hereto at a price equal to the consideration set forth on Schedule A. The
Company will deliver to Manager copies of, and receipts for, the certificates
representing such Common Stock, and Manager will deliver to the Company the
consideration set forth on Schedule A in the manner set forth on Schedule A.
(b) All certificates evidencing shares of Management Stock shall be
held by the Company for the benefit of Manager and the other holder(s) of
Management Stock until immediately prior to the Transfer (as defined in
paragraph 4 below) of such Management Stock in accordance with the provisions of
paragraph 4(a)(ii), 4(a)(v) or 4(a)(vi) below.
(c) Within 30 days after Manager purchases any Management Stock from
the Company, Manager shall make, if Manager is a citizen or resident of the
United States, an effective election with the Internal Revenue Service under
Section 83(b) of the Internal Revenue Code and the regulations promulgated
thereunder.
(d) In connection with the purchase and sale of the Management Stock
hereunder, Manager represents and warrants to the Company that:
(i) The Management Stock to be acquired by Manager pursuant to this
Agreement will be acquired for Manager's own account and not with a view
to, or intention of, distribution thereof in violation of the 1933 Act, or
any applicable state securities laws, and the Management Stock will not be
disposed of in contravention of the 1933 Act or any applicable state
securities laws;
(ii) Manager, either individually or through Manager's purchaser
representative, is sophisticated in financial matters and is able to
evaluate the risks and benefits of the investment in the Management Stock;
(iii) Manager is able to bear the economic risk of Manager's
investment in the Management Stock for an indefinite period of time because
the Management Stock has not been registered under the 1933 Act and,
therefore, cannot be sold unless subsequently registered under the 1933 Act
or an exemption from such registration is available;
(iv) Manager has received and has read a copy of the Company's filings
with the SEC pursuant to the 1934 Act;
(v) Manager has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of Management
Stock; and
(vi) This Agreement constitutes the legal, valid and binding
obligation of Manager, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Manager does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Manager is a party or any judgment, order
or decree to which Manager is subject.
(e) As an inducement to the Company to issue the Management Stock to
Manager, as a condition thereto, Manager acknowledges and agrees that:
(i) neither the issuance of the Management Stock to Manager nor any
provision contained herein shall entitle Manager to remain in the
employment of the Company and its Subsidiaries or affect the right of the
Company to terminate Manager's employment at any time for any reason; and
(ii) the Company shall have no duty or obligation to disclose to
Manager, and Manager shall have no right to be advised of, any material
information regarding the Company and its Subsidiaries at any time prior
to, upon or in connection with the repurchase of Management Stock upon the
termination of Manager's employment with the Company and its Subsidiaries
or as otherwise provided hereunder; provided that so long as the Company is
filing reports under Section 13(a) of the 1934 Act, the Company shall make
available to Manager a copy of its year end audited financial statements
promptly after they are filed with the SEC.
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2. Vesting of Management Stock.
(a) Except as otherwise provided in paragraph 2(b) below, the
Management Stock shall become vested in accordance with the following schedule
if, as of each such date, Manager is employed by the Company or any of its
Subsidiaries:
Cumulative
Percentage of Management
Date Stock Vested
---- ------------------------
Upon payment of the first installment of
principal and interest on the Promissory
Note due on April 30, 1998 33 1/3%
Upon payment of the second installment of
principal and interest on the Promissory
Note due on April 30, 1999 66 2/3%
Upon payment of the third installment of
principal and interest on the Promissory
Note due on April 30, 2000 100%
(b) In the event of the death or permanent disability of Manager, all
shares of Management Stock which have not yet become vested shall become vested
at the time of such event. For purposes of this paragraph 2(b), the
determination of permanent disability shall be made in good faith by the
Company's board of directors (the "Board"). In the event of an Approved Sale,
all shares transferred pursuant to the provisions of paragraph 6 below which
have not yet become vested shall become vested at the time of such transfer.
Shares of Management Stock which have become vested are referred to herein as
"Vested Shares," and all other shares of Management Stock are referred to herein
as "Unvested Shares."
(c) In the event of any "Transfer" of Management Stock to "Permitted
Transferees" pursuant to paragraph 4(b) below (as such terms are defined in such
paragraph), the following allocation rules shall apply: (1) to the extent
Manager at the time of such Transfer holds any Vested Shares of the Management
Stock to be transferred to any Permitted Transferee, such Vested Shares shall
first be allocated to such Permitted Transferee, with the balance of such
Transfer, to the extent necessary, being composed of Unvested Shares, and (2) if
additional Management Stock becomes vested after the time of Transfer to any
Permitted Transferee and such Permitted Transferee then holds Unvested Shares,
such newly-vested Management Stock shall first be allocated to such Permitted
Transferee (or if there is more than one Permitted Transferee then holding
Unvested Shares, such allocation shall be made among them on a pro rata basis).
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3. Repurchase Option.
(a) In the event Manager ceases to be employed by the Company and its
Subsidiaries for any reason (the "Termination"), the Management Stock (whether
held by Manager or one or more of Manager's Permitted Transferees (as
hereinafter defined)) will be subject to repurchase by the Company, at the
Company's option, pursuant to the terms and conditions set forth in this
paragraph 3 (the "Repurchase Option").
(b) The purchase price for each Unvested Share shall be Manager's
Original Cost Plus Interest Less Dividends on the date of the closing of the
repurchase, and the purchase price for each Vested Share shall be the Fair
Market Value for such share on the date of the closing of the repurchase;
provided, however, that if the Termination is for Cause, the purchase price for
each share of Management Stock (regardless of whether such share is a Vested
Share or an Unvested Share) shall be the lower of (i) Manager's Original Cost
Plus Interest Less Dividends or (ii) the Fair Market Value for each such share
on the date of repurchase.
(c) The Board may elect to purchase all or any portion of the Unvested
Shares and the Vested Shares by delivering written notice (the "Repurchase
Notice") to the holder or holders of the Management Stock within 60 days after
the Termination. The Repurchase Notice shall set forth the number of shares of
Management Stock to be acquired from each holder (specifying whether Vested
Shares or Unvested Shares), the aggregate consideration to be paid for such
shares (by category) and the time and place for the closing of the transaction.
The number of shares in any category (i.e., Vested Shares or Unvested Shares) to
be repurchased by the Company shall first be satisfied to the extent possible
from shares of Management Stock in that category held by Manager at the time of
delivery of the Repurchase Notice. If Manager has transferred shares of
Management Stock pursuant to this Agreement as a result of which the number of
shares of Management Stock in any category then held by Manager is less than the
total number of shares of Management Stock in that category that the Company has
elected to purchase, the Company shall purchase the remaining shares elected to
be purchased in that category from the other holder(s) of Management Stock under
this Agreement, pro rata according to the number of shares of Management Stock
in that category held by such other holder(s) at the time of delivery of such
Repurchase Notice (determined as nearly as practicable to the nearest share).
(d) The closing of the purchase of the Management Stock 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 60 days nor less than
five days after the delivery of the such notice; provided, however, that in no
event shall such date be more than 90 days after the date of Termination. The
Company shall pay for the Management Stock to be purchased hereunder as follows:
(i) first, by cancellation of any outstanding indebtedness owed by
Manager to the Company pursuant to the Promissory Note, for an amount equal
to the outstanding principal thereof plus accrued but unpaid interest
thereon; and
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(ii) second, by delivery of a check or wire transfer of funds, at the
Company's option.
(e) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Management Stock by the Company shall be subject
to applicable restrictions contained in any general corporation law to which the
Company (or its successor) is subject and in the Company's and its Subsidiaries'
debt and equity financing agreements. If any such restrictions prohibit the
repurchase of Management Stock hereunder which the Company would otherwise be
entitled to make, the Company may (i) notwithstanding the limitations set forth
in paragraph 3(d), make such repurchases as soon as it is permitted to do so
under such restrictions or (ii) assign its repurchase right to MDCP, provided,
however, that the Company may only assign its repurchase right to MDCP if MDCP
shall agree to pay the Company upon such assignment cash equal to the difference
between the Original Cost of such shares and their then Fair Market Value if the
Original Cost is less than such Fair Market Value.
4. Restrictions on Transfer.
(a) Retention of Management Stock. Manager shall not sell, transfer,
assign, pledge or otherwise dispose of ("Transfer") any interest in any shares
of Management Stock, except for the following Transfers:
(i) Transfers pursuant to the Repurchase Option provided in
paragraph 3;
(ii) Transfers in an Approved Sale pursuant to paragraph 6 below;
(iii) Transfers to Permitted Transferees pursuant to paragraph 4(b)
below;
(iv) Transfers pursuant to the right of first refusal provided in
paragraph 4(c) below;
(v) Transfers of Vested Shares in a Qualified Public Offering; and
(vi) After the occurrence of a Qualified Public Offering, Transfers
of Vested Shares pursuant to Rule 144 under the 1933 Act ("Rule 144");
provided, however, that except in the case of Transfers pursuant to clauses (i)
and (iii) above, Manager may not Transfer any Management Stock which continues
to be subject to the Management Stock Pledge Agreement. Transfers described in
clauses (i), (ii), (iii), (v) and (vi) are referred to as "Exempt Transfers" and
all other Transfers are referred to as "Non-Exempt Transfers."
(b) Certain Permitted Transfers. The restrictions contained in this
paragraph 4 will not apply with respect to Transfers of shares of Management
Stock (i) pursuant to applicable laws of descent and distribution or (ii) among
Manager's family group (transferees pursuant to clauses (i) and (ii) are herein
collectively "Permitted Transferees"); provided that such restrictions
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will continue to be applicable to the Management Stock after any such Transfer
and the Permitted Transferees of such Management Stock shall have agreed in
writing to be bound by the provisions of this Agreement. Manager's "family
group" means Manager's spouse and descendants (whether natural or adopted) and
any trust solely for the benefit of Manager and/or Manager's spouse and/or
descendants.
(c) Right of First Refusal. At least 30 days prior to making any Non-
Exempt Transfer of any shares of Management Stock (the "Election Period"), the
holder of such Management Stock shall deliver a written notice to the Company
(the "Offer Notice"). The Offer Notice shall specify the proposed number and
character of the shares of Management Stock to be Transferred (the "Offered
Shares") and disclose in reasonable detail the proposed terms and conditions of
such Transfer. Unless otherwise agreed by the Company, the purchase price for
any such Transfer must be payable solely in cash at the closing of the
transaction. The Company may purchase all (but not, without the consent of the
holder, less than all) of the Offered Shares at the price and on the same terms
specified in the Offer Notice at the price and on the terms specified therein by
delivering written notice of such election (the "Election Notice") to the holder
within 30 days after delivery of the Offer Notice. If the Company elects to
purchase the Offered Shares, the Transfer of such shares will be consummated as
soon as practical, and, in any event, prior to the later of (i) 30 days after
the delivery of the Election Notice and (ii) the date on which the bona fide
third party offeror desires to consummate the Transfer specified in the Offer
Notice. If the Company has not elected to purchase all of the Offered Shares,
the holder may, within 90 days after the expiration of the Election Period,
Transfer all (but not less than all) of the Offered Shares not purchased by the
Company to one or more third parties at a price and on terms no more favorable
to the transferee(s) than offered to the Company in the Offer Notice; provided
that prior to such Transfer, such transferee(s) shall have agreed in writing to
be bound by the provisions of this Agreement. Any Offered Shares not
Transferred within such 90-day period will be subject to the provisions of this
paragraph 4(c) upon subsequent Transfer.
(d) Termination of Restrictions. The restrictions on the Transfer of
shares of Management Stock set forth in this paragraph 4 will terminate upon the
Transfer of such shares pursuant to the Repurchase Option, pursuant to a
Qualified Public Offering or pursuant to Rule 144.
5. Additional Restrictions on Transfer.
(a) The certificates representing the Management Stock will bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
AS OF SEPTEMBER 29, 1997, 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.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND
CERTAIN OTHER AGREEMENTS SET FORTH IN AN MANAGEMENT STOCK AGREEMENT
BETWEEN THE COMPANY AND INITIAL HOLDER HEREOF DATED AS OF SEPTEMBER
29, 1997 AND A MANAGEMENT STOCK PLEDGE AGREEMENT DATED AS OF SUCH
DATE. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED BY THE HOLDER HEREOF
AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) No holder of Management Stock may sell, transfer or dispose of any
Management Stock (except pursuant to an effective registration statement under
the 1933 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 1933 Act and applicable state
securities laws is required in connection with such transfer.
(c) Each holder of Management Stock agrees not to effect any public
sale or distribution of any Management Stock or other equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
any of the Company's equity securities, during the seven days prior to and the
180 days after the effectiveness of any underwritten public offering, except as
part of such underwritten public offering or if otherwise permitted by the
Company.
6. Drag-Along Rights.
(a) In the event of an Approved Sale, each holder of Management Stock
will consent to and raise no objections against the Approved Sale of the Company
or the process pursuant to which the Approved Sale was arranged and waive any
dissenter's rights and other similar rights. Such holder will take all necessary
and desirable actions as directed by the Board and Madison Dearborn Capital
Partners, L.P. ("MDCP") in connection with the consummation of any Approved Sale
of the Company, including the execution and delivery of all documents and
instruments by such holder as the Company may reasonably request to effect the
Approved Sale, including, without limitation, representations, warranties and
indemnities; provided, however, that no holder shall be required to incur
indemnification obligations in excess of the net proceeds received by such
holder.
(b) In connection with an Approved Sale, MDCP may require each holder
of Management Stock to sell, or cause to be sold, the same proportionate number
of Management Stock owned by each such holder as are proposed to be sold or
transferred by MDCP for the same consideration per share and otherwise on the
same terms and conditions obtained by MDCP in the Approved Sale. On the closing
date of the sale of such Management Stock under this paragraph 6, the
consideration then due such holder of Management Stock shall be paid in full to
such holder against delivery of a certificate or certificates, as the case may
be, representing the Management Stock sold by such holder duly endorsed for
transfer.
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(c) Each holder of Management Stock will bear such holder's pro rata
share (based upon the number of shares sold) of the reasonable costs of any sale
of Management Stock pursuant to an Approved Sale to the extent such costs are
incurred for the benefit of all selling stockholders of the Company and are not
otherwise paid by the Company or the acquiring party. Costs incurred by any
holder of Management Stock on such holder's own behalf will not be considered
costs of the transaction hereunder.
(d) The provisions of this paragraph 6 shall terminate immediately
prior to the closing of any Qualified Public Offering.
7. Definitions.
"Approved Sale" means the sale of the Company, in a single transaction
or a series of related transactions, to a third party that is not an affiliate
of MDCP (or any of its general partners), Madison Dearborn Partners, L.P. (or
any of its general partners), Madison Dearborn Partners, Inc. or the Company (a)
pursuant to which such third party proposes to acquire a majority of the
outstanding voting securities of the Company (whether by merger, consolidation,
recapitalization, reorganization, purchase of the outstanding voting securities
of the Company or otherwise) or all or substantially all of the consolidated
assets of the Company, (b) which has been approved by holders of at least a
majority of the outstanding shares of the Company's voting securities and (c)
pursuant to which all holders of the Company's voting securities receive
(whether in such transaction or, with respect to an asset sale, upon a
subsequent liquidation) the same form and amount of consideration per share or,
if any holders are given an option as to the form and amount of consideration to
be received, all holders are given the same option.
"Cause" shall mean (i) the commission of a felony or a crime involving
moral turpitude or the commission of any other act or omission involving
dishonesty, disloyalty or fraud with respect to the Company or any of its
Subsidiaries or any of their customers or suppliers, (ii) conduct tending to
bring the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties as
reasonably directed by the Company's executive officers or (iv) gross negligence
or willful misconduct with respect to the Company or any of its Subsidiaries.
"Fair Market Value" of each share of Common Stock included in the
Management Stock means the average of the closing prices of the sales of the
Company's Common Stock on all securities exchanges on which the Common Stock may
at the time be listed, or, if there have been no sales on any such exchange on
any day, the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day the Common Stock is not so
listed, the average of the representative bid and asked prices quoted on the
Nasdaq Stock Market as of 4:00 P.M., New York time, or, if on any day the Common
Stock is not quoted on the Nasdaq Stock Market, 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
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such day. If at any time the Common Stock is not listed on any securities
exchange or quoted on the Nasdaq Stock Market or in the over-the-counter market,
the Fair Market Value shall be the fair value of the Common Stock determined in
good faith by the Board (taking into account any discount which may be
appropriate to reflect the non-public, restricted nature and minority status of
any Vested Shares, but without taking into account the effect of any
contemporaneous repurchase of Unvested Shares under paragraph 3 hereof).
"Management Stock" will continue to be Management Stock in the hands
of any holder other than Manager (except for the Company and except for
transferees in a registered public offering under the 1933 Act or in a transfer
pursuant to Rule 144), and except as otherwise provided herein, each such other
holder of Management Stock will succeed to all rights and obligations
attributable to Manager as a holder of Management Stock hereunder. Management
Stock will also include shares of the Company's capital stock issued with
respect to Management Stock by way of a stock split, stock dividend or other
recapitalization.
"Management Stock Pledge Agreement" means the Management Stock Pledge
Agreement dated as of the date hereof by and between Manager and the Company
with respect to the Management Stock purchased hereunder.
"1933 Act" means the Securities Act of 1933, as amended from time to
time.
"1934 Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Original Cost" of each share of Common Stock purchased hereunder
shall be equal to $1.00 (as proportionately adjusted, in each case, for all
subsequent stock splits, stock dividends and other recapitalizations).
"Original Cost Plus Interest Less Dividends" with respect to any share
of Common Stock to be repurchased pursuant to paragraph 3 shall mean such
share's Original Cost plus the interest, if any, which shall have accrued and
remains unpaid with respect to such share under the Promissory Note, less the
value of any dividends or distributions declared or paid with respect to such
share.
"Promissory Note" means the Promissory Note made by Manager in favor
of the Company dated as of the date hereof, issued for the purpose of acquiring
all or a portion of the Management Stock purchased hereunder.
"Qualified Public Offering" means the sale, in an underwritten public
offering registered under the 1933 Act of shares of the Company's Common Stock
having an aggregate offering value of at least $30 million and a per share price
of at least three times the Original Cost of the Common Stock sold to Manager on
the date hereof.
"SEC" means the U.S. Securities and Exchange Commission or any
successor entity.
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"Subsidiary" means any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
8. Confidentiality. Manager acknowledges that the information,
observations and data obtained by Manager while employed by the Company and its
Subsidiaries concerning the business or affairs of the Company or any Subsidiary
(the "Confidential Information") are the property of the Company or such
Subsidiary. Therefore, Manager agrees that Manager shall not disclose to any
unauthorized person or use for Manager's own purposes any Confidential
Information without the prior written consent of the Board or any executive
officer of the Company or any Subsidiary, unless and to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Manager's acts or omissions. Manager shall
deliver to the Company at the termination of Manager's employment, or at any
other time the Company may request, all memoranda, notes, plans, records,
reports, computer tapes, printouts and software and other documents and data
(and copies thereof) relating to the Confidential Information, Work Product (as
defined below) or the business of the Company or any Subsidiary which he may
then possess or have under his control.
9. Inventions and Patents. Manager acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its Subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Manager while employed by
the Company and its Subsidiaries ("Work Product") belong to the Company or such
Subsidiary. Manager shall promptly disclose such Work Product to the Board or
the appropriate executive officer of the Company or any such Subsidiary and
perform all actions reasonably requested by the Board or such person(s) (whether
during or after Manager's period of employment) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
10. Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested), sent by reputable overnight
courier service (charges prepaid) or telecopied (with a confirmatory copy sent
by reputable overnight courier services) to the recipient at the address below
indicated:
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To the Company:
Xxxxx Holdings, Inc.
c/x Xxxxx Horticulture, Inc.
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxx, P.C.
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
and to Manager at the address set forth on the signature page hereto or, in the
case of any recipient, to such other address or to the attention of such other
person as the recipient party shall have specified by prior written notice to
the sending party. Any notice under this Agreement will be deemed to have been
given when so delivered or sent or, if mailed, five days after deposit in the
U.S. mail.
11. General Provisions.
(a) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Management Stock 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 Management Stock as the owner of such
stock 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.
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(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. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by Manager
and the Company and their respective successors and assigns; provided that the
rights and obligations of Manager under this Agreement shall not be assignable
except in connection with a permitted transfer of Management Stock hereunder.
(f) Choice of Law. The corporate law of the state of incorporation of
the Company 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 the internal law, and not the law of conflicts, of the State of
Illinois.
(g) Choice of Forum. No suit, action or proceeding with respect to
this Agreement may be brought in any court or before any similar authority other
than a court of competent jurisdiction in the states of California or Illinois,
and Manager hereby submits to the non-exclusive jurisdiction of such courts for
the purpose of such suit, proceeding or judgment. Manager hereby irrevocably
waives any right to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority.
(h) Remedies. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable 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.
(i) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Manager.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXXXX HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Its: Chief Financial Officer
---------------------------------------
MANAGER:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxx,
Xxxxxx Xxxxx, XX 00000
CONSENT
-------
The undersigned spouse of Manager hereby acknowledges that I have read
the foregoing Management Stock Agreement and that I understand its contents. I
am aware that the Agreement provides for the repurchase of my spouse's shares of
Common Stock under certain circumstances and imposes other restrictions on the
transfer of such Common Stock. I agree that my spouse's interest in the Common
Stock is subject to this Agreement and any interest I may have in such Common
Stock shall be irrevocably bound by this Agreement and further that my community
property interest, if any, shall be similarly bound by this Agreement.
I am aware that the legal, financial and other matters contained in
this Agreement are complex and I am free to seek advice with respect thereto
from independent counsel. I have either sought such advice or determined after
carefully reviewing this Agreement that I will waive such right.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Spouse
/s/ Xxxxx Xxxxxx
--------------------------------------------
Witness
SCHEDULE A
Number of
Shares of Total Method of
Common Stock Consideration Payment
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100,000 $100,000.00 Promissory Note
