EXHIBIT 10.24
BUY-SELL AGREEMENT
This BUY-SELL AGREEMENT (this "AGREEMENT") is dated as of October 25,
2000, by and among D and W Holdings, Inc., a Delaware corporation (the
"COMPANY"), C. Xxxxxxx Xxxxx (the "STOCKHOLDER"), and for the purposes of
agreeing to and acknowledging the provisions of Section 3.4 of this Agreement,
GE Investment Private Placement Partners II, a Limited Partnership, a Delaware
limited partnership ("GEIPPPII").
WHEREAS, in connection with entering into an employment agreement with
Atrium Companies, Inc. ("Atrium"), the Stockholder is acquiring 1,480,769 shares
of the Series A Common Stock, par value $0.01 per share, of the Company (the
"SHARES"); and
WHEREAS, in accordance with such acquisition of the Shares, the Company
and the Stockholder have agreed to enter into a Buy-Sell Agreement in the form
hereof with respect to the Shares and any Common Stock or Common Stock
Equivalents acquired by the Stockholder;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the Company and the Stockholder agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the meanings
specified below:
"AFFILIATE" means, as to any Person, a Person that directly, or
indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such Person.
"BOARD" means the Board of Directors of the Company.
"CALL NOTICE" has the meaning specified in Section 2.2 hereof.
"CAUSE" means termination by action of the Board of Directors
because of: (a) the Stockholder's conviction of, or plea of nolo
contendere to, a felony or a crime involving moral turpitude; (b)
the Stockholder's personal dishonesty, incompetence, willful
misconduct, willful violation of any law, rule or regulation
(other than minor traffic violations or similar offenses) or
breach of fiduciary duty which involves personal profit; (c) the
Stockholder's commission of material mismanagement in the conduct
of his duties as assigned to him by the Board of Directors or the
Stockholder's supervising officer or officers of the Company or
any Related Entity; (d) the Stockholder's willful failure to
execute or comply with the policies of the Company or any Related
Entity or his stated duties as established by the Board of
Directors or
the Stockholder's supervising officer or officers of the
Company or any Related Entity, or the Stockholder's intentional
failure to perform the Stockholder's stated duties; or (e)
substance abuse or addiction on the part of the Stockholder.
Notwithstanding the foregoing, in the event that the
Stockholder is at any time subject to an employment agreement
with the Company or any Related Entity that contains a
definition of "Cause" (or any similar definition), then during
the term of such employment agreement the definition contained
in such employment agreement shall, for all purposes of this
Agreement, be the applicable definition of "Cause" hereunder.
"CHANGE OF CONTROL" means the first to occur of the following
events: (i) any sale, lease, exchange or other transfer (in one
transaction or series of related transactions) of all or
substantially all of the assets of the Company (including the
capital stock or assets of its operating subsidiaries) to any
Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group"), (ii) a majority of the Board
shall consist of Persons who are not nominated collectively by
Ardshiel, Inc. and its Affiliates and GEIPPPII; or (iii) the
acquisition by any Person or Group (other than GEIPPPII, Ardshiel
and their Affiliates), together with their associates and
Affiliates, of the power, directly or indirectly, to vote or
direct the voting of securities having more than 50% of the
ordinary voting power for the election of directors of the
Company.
"COMMON STOCK" means the Company's authorized Series A Common
Stock, $0.01 par value per share, and any other stock of the
Company which is (a) not preferred as to dividends or assets over
any class of stock of the Company, (b) not subject to redemption,
and (c) issued to the holders of shares of Common Stock upon any
reclassification thereof.
"COMMON STOCK EQUIVALENTS" means, without duplication with any
other Common Stock or common stock equivalents, any rights,
warrants, options, convertible securities or indebtedness,
exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or
indirectly, Common Stock of the Company and securities convertible
or exchangeable into Common Stock of the Company, whether at the
time of issuance or upon the passage of time or the occurrence of
some future event.
"COMPANY" has the meaning specified in the preamble hereto.
"DELAYED CLOSING DATE" has the meaning specified in Section 5.2
hereto.
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"DISPOSITION EVENT" means (a) the completion of any voluntary or
involuntary liquidation or dissolution of the Company, (b) the
completion of a Qualifying Public Offering or (c) a Change of
Control.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FAMILY MEMBERS" means, with respect to any individual, any
Related Person or Family Trust of such individual.
"FAMILY TRUST" means, with respect to any individual, any trust
created for the benefit of one or more of such individual's
Related Persons and controlled by such individual.
"FULLY-DILUTED COMMON STOCK" means, at any time, the then
outstanding Common Stock of the Company plus (without duplication)
all shares of Common Stock issuable, whether at such time or upon
the passage of time or the occurrence of future events, upon the
exercise, conversion, or exchange of all then outstanding Common
Stock Equivalents.
"GEIPPPII" has the meaning specified in the preamble hereto.
"MARKET VALUE PER SHARE" means, with respect to any date, the
quotient obtained by dividing (a) the fair market value (as
determined by the Board of Directors in good faith, or, if the
Board's determination is disputed by the Stockholder within ten
(10) days following notice of determination by the Board of
Directors to the Stockholder, by an independent investment
banking, accounting firm or independent appraiser of nationally
recognized standing or regional prominence selected in good faith
by the Board) of the entire common equity of the Company (without
premium for control or discounts for minority interests,
restrictions on transfer or lack of voting rights), calculated as
of such date, plus the aggregate consideration to be paid to the
Company upon the exercise, conversion or exchange of all then
outstanding and exercisable, convertible or exchangeable Common
Stock Equivalents, by (b) the sum of the number of shares of
Common Stock then outstanding, plus the number of shares of Common
Stock then issuable upon exercise, conversion or exchange of then
outstanding and exercisable, convertible or exchangeable Common
Stock Equivalents.
"PERMITTED TRANSFEREE" means the Stockholder's Family Members
and Personal Representative.
"PERSON" means any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a
corporation, a partnership, a trust or other entity.
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"PERSONAL REPRESENTATIVE" means with respect to any individual,
any executor, administrator, trustee, guardian or other legal
representative of such individual.
"PRIME RATE" means, for any day, a rate PER ANNUM that is equal to
the corporate base rate of interest as stated in THE WALL STREET
JOURNAL, changing when and as said corporate base rate changes.
"PURCHASE PRICE PER SHARE" means $1.30.
"QUALIFYING PUBLIC OFFERING" means a firm commitment underwritten
public offering of Common Stock for cash which, when aggregated
with all prior public offerings, constitutes an offering of more
than 30% of the Common Stock registered under the Securities Act.
"RELATED ENTITY" means, with respect to any entity, such entity's
direct and indirect parents and subsidiaries.
"RELATED PERSONS" means, with respect to any individual, such
individual's parents, spouse, children and grandchildren.
"REPURCHASE NOTICE" has the meaning specified in Section 3.3
hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" has the meaning specified in the preamble hereto.
"STOCKHOLDER" has the meaning specified in the introductory
paragraph hereof.
"SUBSIDIARY" means any corporation, association, trust, or other
business entity, of which the designated parent shall at any time
own or control directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of the
outstanding shares of capital stock (or other shares of beneficial
interest) entitled ordinarily to vote for the election of such
business entity's directors (or in the case of a business entity
that is not a corporation, for those persons exercising functions
similar to directors of a corporation).
"TERMINATION OF EMPLOYMENT" means the termination of the
Stockholder's employment with the Company and all of its Related
Entities for any reason, including without limitation for
retirement, death or disability of the Stockholder, and whether or
not for "Cause".
"TRANSFER" has the meaning specified in Section 3.1 hereof.
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2. REPURCHASE OF SHARES.
2.1 CALL ON SHARES. Upon the Termination of Employment at any time, or
a Change of Control, the Company and/or its designees may, at its option,
repurchase from the Stockholder, and the Stockholder will at the request of
the Company sell to the Company and/or its designees, all or any portion of
the Shares and other Common Stock and Common Stock Equivalents held by the
Stockholder specified in the Call Notice (hereinafter defined) at a purchase
price per share determined pursuant to paragraphs (a), (b) and (c) below:
(a) in the event that such Termination of Employment is for
Cause, at a purchase price per share equal to the lesser of (i) the Purchase
Price Per Share and (ii) the Market Value Per Share as of the date of such
Termination of Employment (and, in the case of a Common Stock Equivalent,
minus any exercise or conversion price); and
(b) in the event that such Termination of Employment is for any
reason other than for Cause, including, without limitation, retirement or
failure to renew an expired employment agreement, within three years of the
date hereof, at a purchase price per share equal to the Purchase Price Per
Share as of the date of such Termination of Employment (and, in the case of a
Common Stock Equivalent, minus any exercise or conversion price) and,
following the third anniversary of the date hereof, at a purchase price per
share equal to the Market Value Per Share as of the date of such Termination
of Employment (and, in the case of a Common Stock Equivalent, minus any
exercise or conversion price); and
(c) in the event of a Change of Control, at a purchase price per
share equal to the Market Value Per Share (and, in the case of a Common Stock
Equivalent, minus any exercise or conversion price).
2.2 CALL CLOSING. The Company's call rights under Section 2 hereof
shall be exercisable by the Company at any time within 180 days following the
Termination of Employment or Change of Control by notice (the "CALL NOTICE")
to the Stockholder specifying the number of Shares or other securities being
repurchased, the aggregate purchase price payable therefor and the date, time
and place of a closing for the repurchase, such closing to be held not
earlier than five (5) days nor later than thirty (30) days after delivery of
the Call Notice to the Stockholder. The Company's call rights under Section
2.1 above shall lapse if not exercised within the time periods specified
above in accordance with the provisions hereof except as otherwise provided
in Section 5 hereof. Upon tender by the Company of the purchase price for the
Shares, or other Common Stock or Common Stock Equivalents, being repurchased
hereunder in accordance with Section 6 hereof, all of the Shares, or other
Common Stock or Common Stock Equivalents, being so repurchased shall no
longer be deemed to be outstanding, all of the Stockholder's rights with
respect to such Shares, or other Common Stock or Common Stock Equivalents,
shall terminate with the exception of the right of the Stockholder to receive
the repurchase price in exchange therefor pursuant to this Section
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2.2, and the Stockholder hereby appoints the Company as its attorney-in-fact
to take all actions necessary and sign all documents required to cancel such
Shares, or other Common Stock or Common Stock Equivalents, on its books and
records.
2.3 PUT. If, in the event of Termination of Employment by the Company
without Cause within one year of the date hereof, or, in the event of
Termination of Employment due to death or disability (as such terms are used
or defined in the Stockholder's employment agreement with the Company), the
Company does not exercise its option to purchase Shares or any other shares
of Common Stock or Common Stock Equivalents held by the Stockholder, the
Stockholder or his personal representative may require the Company to
purchase all the Shares, and other shares of Common Stock and Common Stock
Equivalents, but not less than all, that are owned by the Stockholder as of
the effective date of such Termination of Employment. In such event, the
purchase price shall be as set forth in Section 2.1(b) above.
2.4 PUT CLOSING. If the Stockholder or his personal representative
elects to exercise his put option as described in Section 2.3 above, the
Stockholder or his personal representative shall give written notice to the
Company of such intention not later than ninety (90) days after his
Termination of Employment. The Closing of such repurchase shall otherwise be
effected in accordance with the provisions set forth in Section 2.2 hereof
for a call closing.
3. RESTRICTIONS ON TRANSFER; DRAG-ALONG RIGHTS.
3.1 RESTRICTIONS ON TRANSFER OF SHARES. Except as otherwise expressly
provided herein, the Stockholder may not sell, assign, transfer, pledge or
otherwise dispose of ("TRANSFER") any of the Shares, or other Common Stock or
Common Stock Equivalents, held by the Stockholder, either voluntarily or
involuntarily or by operation of law; PROVIDED, HOWEVER, that the Stockholder
may Transfer any such securities to the Company pursuant to Section 2 hereof
and may Transfer any Shares to Permitted Transferees of the Stockholder, so
long as any such transferee agrees to be bound by the provisions hereof;
PROVIDED, FURTHER, that the Stockholder may pledge 1,480,769 Shares to The
Xxxxxxx Company, Inc. as security for the loan, dated as of October 25, 2000
from The Xxxxxxx Company, Inc. to the Stockholder in the amount of $962,500
and, in the case of a foreclosure in respect of such pledge, transfer such
Shares to The Xxxxxxx Company, Inc., an affiliate of The Xxxxxxx Company,
Inc., an existing stockholder of the Company, or, subject to the approval of
the Company in its sole discretion, any other person.
3.2 DISPOSITIONS IN BREACH OF THIS AGREEMENT. Any disposition or
attempted disposition of any Shares, or other Common Stock or Common Stock
Equivalents in breach of the provisions of Section 3.1 hereof shall be void,
shall constitute a breach of this Agreement and shall entitle the Company to
repurchase all of the Shares, or other Common Stock or Common Stock
Equivalents, pursuant to the procedures set forth in Section 3.3 hereof, at a
purchase price per Share equal to the lower of the Market Value Per Share or
the Purchase Price Per Share as of the date of such disposition or attempted
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disposition. The repurchase rights of the Company under this Section 3.2 will
lapse if not exercised pursuant to Section 3.3 hereof within 90 days of the
date on which the Board of Directors of the Company first receives actual
notice of the disposition or attempted disposition giving rise to such
repurchase rights, but such failure to exercise shall in no event constitute
a waiver of any breach of this Agreement.
3.3 REPURCHASE PROCEDURE. The Company may exercise its repurchase
rights under Section 3 hereof by giving notice (the "REPURCHASE NOTICE") to
the Stockholder within ninety (90) days after the Board of Directors of the
Company obtains actual knowledge of the breach giving rise to such repurchase
rights. The Repurchase Notice shall specify the aggregate purchase price for
the Shares, or other Common Stock or Common Stock Equivalents, and the date,
time and place for a closing of the repurchase, such closing to be held not
earlier than five (5) days nor later than thirty (30) days after delivery of
the Repurchase Notice by the Company to the Stockholder. The Company's
repurchase rights under Section 3.2 hereof shall lapse with respect to any
event giving rise thereto if not exercised within the foregoing time periods
in accordance with the procedures specified in this Section 3.3 except as
otherwise provided in Section 5 hereof. Upon tender by the Company of the
purchase price for the Shares being repurchased hereunder in accordance with
Section 6 hereof, all of the Shares, or other Common Stock or Common Stock
Equivalents, being so repurchased shall no longer be deemed to be
outstanding, all of the Stockholder's rights with respect to such Shares, or
other Common Stock or Common Stock Equivalents, shall terminate with the
exception of the right of the Stockholder to receive the repurchase price in
exchange therefor pursuant to Section 3.2, and the Stockholder hereby
appoints the Company as its attorney-in-fact to take all actions necessary
and sign all documents required to cancel such Shares, or other Common Stock
or Common Stock Equivalents, on the Company's books and records.
3.4 DRAG-ALONG RIGHTS.
(a) If, at any time, GEIPPPII proposes to transfer in a bona fide
arm's length sale all of the Common Stock and Common Stock Equivalents owned
by GEIPPPII to any person or persons who are not Affiliates of GEIPPPII (the
"PROPOSED TRANSFEREE"), GEIPPPII shall have the right (the "DRAG ALONG
RIGHT"), subject to applicable law and compliance with any other restrictions
applicable to such transfer, to require the Stockholder to sell, pursuant to
this Section 3.4, to the Proposed Transferee, on the same terms and
conditions as applicable to GEIPPPII except as limited in Section 3.4(b), all
(but not less than all) of the Common Stock and Common Stock Equivalents then
held by the Stockholder; provided that the exercise or conversion price of
any Common Stock Equivalents will be subtracted from any purchase price
otherwise paid therefor.
(b) To exercise a Drag Along Right, GEIPPPII shall give the
Stockholder at least 15 days prior to the proposed transfer to the Proposed
Transferee, a written notice (the "DRAG ALONG NOTICE") containing (i) the
name and address of the
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Proposed Transferee and (ii) the proposed purchase price, the terms of
payment and other material terms and conditions of the Proposed Transferee's
offer. The Stockholder shall thereafter be obligated to sell all of its
Common Stock and Common Stock Equivalents to the Proposed Transferee. The
Stockholder shall agree to enter into a purchase agreement in form and
substance approved by GEIPPPII to the extent such agreement shall contain
customary representations as to ownership of the shares to be purchased and
the absence of liens thereon and customary indemnification provisions,
including indemnification from the Stockholder. If the sale is not
consummated within a period of 180 days following the date of the Drag Along
Notice, then the Stockholder shall no longer be obligated to sell such
Stockholder's shares of Common Stock and Common Stock Equivalents pursuant to
such Drag Along Right but shall have the rights under, and remain subject to,
the provisions of this Section 3.4 with respect to any subsequent proposed
transfer described in this Section 3.4. The Stockholder shall not be required
to participate in a proposed transfer pursuant to the exercise of a Drag
Along Right unless its liability for breaches of representations and
warranties made in connection with the sale thereunder is limited to no more
than the total sale price received by the Stockholder in such sale.
4. LEGENDS; STOP TRANSFER.
4.1 Each certificate representing the Shares shall bear legends in or
substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS. NO TRANSFER,
SALE OR OTHER DISPOSITION OF THESE SHARES MAY BE MADE UNLESS A
REGISTRATION STATEMENT WITH RESPECT TO THESE SHARES HAS BECOME
EFFECTIVE UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS, OR THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
CERTAIN REPURCHASE AND OTHER RIGHTS IN FAVOR OF THE COMPANY
AND PROVISIONS RESTRICTING TRANSFER CONTAINED IN A BUY-SELL
AGREEMENT, DATED AS OF OCTOBER 25, 2000, A COPY OF WHICH WILL
BE FURNISHED BY THE COMPANY TO THE HOLDER OF THE SHARES
EVIDENCED BY THIS CERTIFICATE UPON WRITTEN REQUEST AND WITHOUT
CHARGE."
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4.2 In addition, the Company shall make a notation regarding the
restrictions on transfer of the Shares in the stock books of the Company, and
such shares shall be transferred on the books of the Company only if and when
transferred or sold in compliance with all of the terms and conditions of
this Agreement.
5. REPURCHASE RESTRICTIONS.
5.1 CONTRACTUAL RESTRICTIONS ON REPURCHASE. Notwithstanding any
provision to the contrary in Sections 2 or 3 hereof, in the event that any
payment by the Company of any portion of the purchase price for any Shares,
or other Common Stock or Common Stock Equivalents, that the Company is
obligated or has elected to repurchase is, at the time such payment would
otherwise be due hereunder, prohibited by the terms of any of the Company's
or any of its Subsidiaries' financing agreements with its lenders or any
other contract to which the Company or any of its Subsidiaries is bound, the
Company shall be entitled, but not obligated, to complete the repurchase of
such Shares, or other Common Stock or Common Stock Equivalents, by tendering
to the Stockholder (or any permitted transferee pursuant to Section 3.1
hereof) (a) a check for that portion (if any) of the purchase price the
payment of which is not so prohibited, and (b) a promissory note for the
balance of the purchase price. Each such promissory note shall (i) bear
interest at the Prime Rate, (ii) provide for the payment of the principal
evidenced thereby in annual installments commencing one (1) year after such
repurchase in such amounts as are satisfactory to the Company's and its
Subsidiaries' lenders, and (iii) be subordinated to the Company's or any of
its Subsidiaries' indebtedness to its lenders on terms satisfactory to such
lenders.
5.2 IMPAIRMENT OF CAPITAL. If, even after giving effect to the
provisions of Section 5.1 above, the Company is prohibited by law from
repurchasing any Shares, or other Common Stock or Common Stock Equivalents,
which it is obligated or has elected to repurchase hereunder due to any
existing or prospective impairment of its capital, the closing of such
repurchase shall be delayed until the first date on which the Company has
sufficient capital to lawfully repurchase such Shares, or other Common Stock
or Common Stock Equivalents (the "DELAYED CLOSING DATE"). In the event of any
such delay, (a) the Company will be obligated to pay, on the Delayed Closing
Date, interest on the repurchase price for such Shares, or other Common Stock
or Common Stock Equivalents, at the Prime Rate from the date on which the
closing of the repurchase of such Shares, or other Common Stock or Common
Stock Equivalents, was originally scheduled to occur to the Delayed Closing
Date, and (b) the Stockholder shall remain bound by the restrictions on
Transfer contained herein during such delay.
6. PAYMENT FOR SHARES. At any closing held to consummate any repurchase of the
Shares, or other Common Stock or Common Stock Equivalents, hereunder, the
Stockholder shall deliver to the Company all certificates representing such
Shares, or other Common Stock or Common Stock Equivalents, duly endorsed in
blank or with duly
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executed stock powers attached, and the Company shall deliver to the
Stockholder a check in the amount of the repurchase price and/or a promissory
note as provided in Section 5.1 above.
7. TERM. This Agreement, and, except as provided in the following sentence, the
repurchase rights and obligations and all of the restrictions on transfer
contained herein (including, without limitation, the repurchase rights of the
Company pursuant to Sections 2 and 3 hereof), shall terminate upon the earliest
of (a) the completion of any voluntary or involuntary liquidation or dissolution
of the Company, (b) the completion of a Qualifying Public Offering or (c) a
Change of Control. The termination of this Agreement shall not affect any
repurchase rights or obligations which have arisen hereunder prior to such
termination.
8. ADJUSTMENT OF REPURCHASE PRICE. Upon any stock split, reverse stock split,
recombination of shares or other similar reorganization of the capital structure
of the Company, the repurchase price otherwise payable to the Stockholder upon
the repurchase of any Shares, or other Common Stock or Common Stock Equivalents,
pursuant to Sections 2 and 3 hereof shall be proportionally adjusted to reflect
such reorganization.
9. GENERAL.
9.1 NOTICES. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to
have been duly given if delivered personally or if mailed by certified mail,
return receipt requested, postage prepaid, or if sent by overnight courier or
by written telecommunication, to the relevant address set forth below, or to
such other address as the recipient of such notice or communication shall
have specified to the other party hereto in accordance with this Section 9.1:
If to the Company, to:
D and W Holdings, Inc.
c/o Ardshiel, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
With a copy sent contemporaneously to:
Xxxx X. Xxxxx and Xxxxx Xxxxxxxxxx
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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If to the Stockholder, to the address set forth below his or her
signature hereto.
With a copy sent contemporaneously to:
Xxxx X. Xxxxxxx
Bell, Davis & Pitt, P.A.
000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxx-Xxxxx, XX 00000-0000
Any such notice shall be effective (a) if delivered personally, when
received, (b) if sent by overnight courier, when receipted for, (c) if mailed,
three (3) days after being mailed as described above, and (d) if sent by written
telecommunication, when dispatched.
9.2 EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
agrees that upon any breach by the Stockholder of his or her obligations
under Sections 2, 3 or 6 hereof, the Company will have no adequate remedy at
law, and accordingly will be entitled to specific performance and other
appropriate injunctive and equitable relief.
9.3 SEVERABILITY. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions hereof shall not in
any way be affected or impaired.
9.4 WAIVERS. No delay or omission by either party hereto in exercising
any right, power or privilege hereunder shall impair such right, power or
privilege, nor shall any single or partial exercise of any such right, power
or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
9.5 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.
9.6 ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the heirs, successors and Permitted Transferees of each of the
parties hereto. It is expressly agreed that the Company may from time to time
assign any of its repurchase rights hereunder to one or more of the holders
of the Common Stock.
9.7 ENTIRE AGREEMENT. This Agreement, together with any employment
agreement or stock option agreement to which the Stockholder is a party,
contains the entire understanding of the parties hereto with respect to the
subject matter contained herein, supersedes all prior agreements and
understandings relating to the subject matter hereof and shall not be amended
except by a written instrument hereafter signed by each
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of the parties hereto. Nothing in this Agreement shall be construed as a
grant to the Stockholder of any right to continuing employment with the
Company or any of its Subsidiaries or to restrict in any way the Company's or
any of its Subsidiaries' right to terminate the Stockholder's employment at
any time.
9.8 THIRD PARTIES. GEIPPPII is an intended third party beneficiary of
the provisions of Section 3.4 of this Agreement.
9.9 GOVERNING LAW. This Agreement and the obligations of the parties
hereunder shall be deemed to be a contract under seal and shall for all
purposes be governed by and construed in accordance with the internal laws of
the State of New York without reference to principles of conflicts of law.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Buy-Sell Agreement to be duly executed as of the
date and year first above written.
THE COMPANY: D AND W HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
THE STOCKHOLDER
By:
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Name: C. Xxxxxxx Xxxxx
Address:
000 Xxxxxxxx Xxxx
Xxxxxxx-Xxxxx, XX 00000
GEIPPPII: GE INVESTMENT PRIVATE PLACEMENT
PARTNERS II, a Limited Partnership
By: GE ASSET MANAGEMENT
INCORPORATED, its general partner
By:
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Name:
Title:
