Exhibit 10.1
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this “
Agreement ”) is made as of August 31, 2007, between
WII Holding, Inc., a Delaware corporation (the “
Company ”), and John Fitzpatrick (“
Executive ”).
The
Company and Executive desire to enter into an agreement pursuant to
which Executive shall purchase, and the Company shall sell,
8,408.95 shares of the Company’s Common Stock, par value
$0.01 per share (the “ Common Stock ”).
All of such shares of Common Stock acquired by Executive pursuant
to this Agreement are referred to herein as “ Executive
Stock .” Certain definitions are set forth in
Section 8 of this Agreement.
Olympus Growth Fund IV, L.P. and its affiliates
(the “ Investor ”) acquired capital stock of the
Company pursuant to a Stock Purchase Agreement, dated as of January
9, 2007, among the Company, the Investor and the other stockholders
of the Company party thereto. Certain provisions of this
Agreement are intended for the benefit of, and shall be enforceable
by, the Investor.
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 hereto agree as
follows:
1.
Purchase and Sale of Executive Stock .
(a)
Upon execution of this Agreement, Executive shall purchase, and the
Company shall sell, 8,408.95 shares of Common Stock at a price of
$0.01 per share. The Company shall deliver to Executive a copy of
the certificate representing such shares of Common Stock (subject
to Section 1(b) below), and Executive shall deliver
to the Company a check in the aggregate amount of
$84.09.
(b)
Until the occurrence of a Sale of the Company or a Public Offering,
all certificates evidencing shares of Executive Stock shall be held
by the Company for the benefit of Executive and the other holder(s)
of Executive Stock. Upon the occurrence of a Sale of the
Company or a Public Offering, the Company shall deliver the
certificates for the Executive Stock to the record holders
thereof.
(c)
Within thirty (30) days after Executive purchases any Executive
Stock from the Company, Executive may make an election with the
Internal Revenue Service under Section 83(b) of the Internal
Revenue Code and the regulations promulgated thereunder with
respect to any such purchase in the form of Annex A attached
hereto.
(d)
In connection with the purchase and sale of the Executive Stock
hereunder, Executive represents and warrants to the Company
that:
(i)
The Executive Stock to be acquired by Executive pursuant to this
Agreement shall be acquired for Executive’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 Executive Stock shall not be disposed of in contravention
of the 1933 Act or any applicable state securities
laws.
(ii)
Executive is an executive officer or management employee of the
Company or its Subsidiaries, is an “accredited
investor” as defined in Rule 501(a) under Regulation D
promulgated under the Securities Act, and, by reason of his
business and financial experience, and the business and financial
experience of those retained by or on behalf of Executive to advise
him with respect to his subscription for the Executive Stock being
purchased hereunder, Executive, together with such advisors, has
such knowledge, sophistication and experience in
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business and financial matters so as to be
capable of evaluating the risks and benefits of the investment in
the Executive Stock.
(iii)
Executive is able to bear the economic risk of Executive’s
investment in the Executive Stock for an indefinite period of time
because the Executive 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)
Executive and his advisors have had an opportunity to ask questions
and receive answers concerning the terms and conditions of the
offering of Executive Stock and has had full access to such other
information concerning the Company as Executive has
requested.
(v)
This Agreement constitutes the legal, valid and binding obligation
of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive
do not and shall not conflict with, violate or cause a breach of
any agreement, contract or instrument to which Executive is a party
or any judgment, order or decree to which Executive is
subject.
(e)
As an inducement to the Company to issue the Executive Stock to
Executive, as a condition thereto, Executive acknowledges and
agrees that:
(i)
neither the issuance of the Executive Stock to Executive nor any
provision contained herein shall entitle Executive to remain in the
employment of the Company and/or its Subsidiaries or affect the
right of the Company to terminate Executive’s employment at
any time;
(ii)
the Company shall have no duty or obligation to disclose to
Executive, and Executive 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
Executive Stock upon the termination of Executive’s
employment with the Company and its Subsidiaries or as otherwise
provided hereunder; and
(iii)
he shall be bound by the obligations set forth in Section
6 hereof.
2.
Vesting of Executive Stock .
(a)
Except as otherwise provided in Sections 2(b) ,
2(c) and 2(d) below, the Executive Stock shall become
vested in accordance with the following schedule (provided that if only clause (ii) is
satisfied in a given year, then half of the amount that would vest
if both (i) and (ii) were satisfied shall vest as of such fiscal
year end) , if (i)
the Company’s EBITDA meets the applicable EBITDA Target
Amount as of such fiscal year end, and (ii) if as of each such date
Executive is, and has been since the date hereof, employed by the
Company or any of its Subsidiaries:
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Date
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Annual
Percentage of
Executive Stock Vested
|
|
|
Company’s fiscal year ending on or around
December 31, 2007
|
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25
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%
|
|
Company’s fiscal year ending on or around
December 31, 2008
|
|
25
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%
|
|
Company’s fiscal year ending on or around
December 31, 2009
|
|
25
|
%
|
|
Company’s fiscal year ending on or around
December 31, 2010
|
|
25
|
%
|
(b)
To the extent the EBITDA Target Amount is not achieved in a certain
fiscal year (a “ Missed Fiscal Year ”), if the
Company’s EBITDA in a subsequent fiscal year (through and
including the last fiscal year) is at least equal to the EBITDA
Target Amount for such fiscal year (an “ Achieved
Fiscal
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Year ”), then for each Missed Fiscal Year, if
the Company’s aggregate EBITDA for such Missed Fiscal Year
and all subsequent fiscal years (up to and including the Achieved
Fiscal Year) is at least equal to the sum of the EBITDA Target
Amounts for such fiscal years, then the percentage of Executive
Stock that will be vested for achieving the Achieved Fiscal Year
shall include the percentage of the Executive Stock for such Missed
Fiscal Year. If the percentage of Executive Stock for any
Missed Fiscal Year is vested in accordance with this Section
2(b) , such fiscal year shall no longer be deemed to be a
Missed Fiscal Year. Notwithstanding anything set forth herein
to the contrary, (i) all Executive Stock shall become fully vested
on the date that is seven (7) years from the date hereof, provided
that Executive is, and has been since the date hereof, employed by
the Company or any of its Subsidiaries on such date, and (ii) in no
event shall the aggregate amount of Executive Stock to be vested
exceed the amount of Executive Stock purchased
hereunder.
(c)
Shares of Executive Stock which have become vested are referred to
herein as “ Vested Shares ” and all other shares
of Executive Stock are referred to herein as “ Unvested
Shares .” Upon the occurrence of a Sale of the
Company, all Unvested Shares shall become Vested Shares at the time
of such event if the Investor receives an aggregate amount in such
Sale of the Company in respect of the capital stock of the Company
held by the Investor at least equal to the product of (i) the
Investor’s aggregate original cost for all of the capital
stock of the Company held by the Investor at the time of such Sale
of the Company, and (ii) the Target Return Rate set forth in
Appendix A for the year in which such Sale of the Company is
consummated. Any Unvested Shares held by Executive at the
time of a Sale of the Company (excluding the Unvested Shares that
shall become Vested Shares in connection with such Sale of the
Company in accordance with this Section 2(c) ) shall
be subject to repurchase by the Company in accordance with the
terms of Section 3 below. All Unvested Shares
held by Executive at the time of a Public Offering shall remain
outstanding and be subject to the original vesting schedule set
forth in Section 2(a) above.
(d)
Notwithstanding anything herein to the contrary, the Board may, in
its sole discretion, accelerate the vesting of shares of Executive
Stock at any time.
3.
Repurchase Option .
(a)
In the event Executive ceases to be employed by the Company and its
Subsidiaries for any reason (the “ Termination
”), the Executive Stock (whether held by Executive or one or
more of Executive’s transferees) shall be subject to
repurchase by the Company and the Investor pursuant to the terms
and conditions set forth in this Section 3 (the
“ Repurchase Option ”).
(b)
The purchase price for each Unvested Share shall be the lesser of
(i) Executive’s Original Cost for such share and (ii) the
Fair Market Value for such share (in each case, with shares having
the lowest cost subject to repurchase prior to shares with a higher
cost). The purchase price for each Vested Share shall be the
Fair Market Value for such share; provided that, if Executive is
terminated for Cause, then the purchase price for each Vested Share
shall be the lesser of (A) Executive’s Original Cost for such
share and (B) the Fair Market Value for such share (in each case,
with shares having the lowest cost subject to repurchase prior to
shares with a higher cost).
(c)
The Board may elect to purchase all or any portion of the Unvested
Shares and/or the Vested Shares by delivering written notice (the
“ Repurchase Notice ”) to the holder or holders
of the Executive Stock within 120 days after the Termination. The
Repurchase Notice shall set forth the number of Unvested Shares and
Vested Shares to be acquired from each holder of Executive Stock,
the aggregate consideration to be paid for such shares and the time
and place for the closing of the transaction. The number of shares
to be repurchased by the Company shall first be satisfied to the
extent possible from the shares of Executive Stock held by
Executive at the time of delivery of the Repurchase Notice. If the
number of shares of
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Executive Stock then held by Executive is less
than the total number of shares of Executive Stock the Company has
elected to purchase, the Company shall purchase the remaining
shares elected to be purchased from the other holder(s) of
Executive Stock under this Agreement pro rata according to the
number of shares of Executive Stock held by such other holder(s) at
the time of delivery of such Repurchase Notice (determined as close
as practicable to the nearest whole shares). The number of Unvested
Shares and Vested Shares to be repurchased hereunder shall be
allocated among Executive and the other holders of Executive Stock
(if any) pro rata according to the number of shares of Executive
Stock to be purchased from such persons.
(d)
If for any reason the Company does not elect to purchase all of the
Executive Stock pursuant to the Repurchase Option, the Investor
shall be entitled to exercise the Repurchase Option for the shares
of Executive Stock the Company has not elected to purchase (the
“ Available Shares ”). As soon as practicable
after the Company has determined that there will be Available
Shares, but in any event within 120 days after the Termination, the
Company shall give written notice (the “ Option Notice
”) to the Investor setting forth the number of Available
Shares and the purchase price for the Available Shares. The
Investor may elect to purchase any or all of the Available Shares
by giving written notice to the Company within 30 days after the
Option Notice has been given by the Company. As soon as
practicable, and in any event within ten days after the expiration
of the 30-day period set forth above, the Company shall notify each
holder of Executive Stock as to the number of shares being
purchased from such holder by the Investor (the “
Supplemental Repurchase Notice ”). At the time the
Company delivers the Supplemental Repurchase Notice to the
holder(s) of Executive Stock, the Company shall also deliver
written notice to the Investor setting forth the number of shares
the Investor is entitled to purchase, the aggregate purchase price
and the time and place of the closing of the transaction. The
number of Unvested Shares and Vested Shares to be repurchased
hereunder shall be allocated among the Company and the Investor pro
rata according to the number of shares of Executive Stock to be
purchased by each of them.
(e)
The closing of the purchase of the Executive Stock pursuant to the
Repurchase Option shall take place on the date designated by the
Company in the Repurchase Notice or Supplemental Repurchase Notice,
which date shall not be more than 60 days nor less than 15 days
after the delivery of the later of either such notice to be
delivered. The Company and/or the Investor shall pay for the
Executive Stock to be purchased pursuant to the Repurchase Option
by delivery of a check or wire transfer of funds. In
addition, the Company may pay the purchase price for such shares by
offsetting bona fide debts owed by Executive to the Company or any
of its subsidiaries. The purchasers of Executive Stock
hereunder shall be entitled to receive customary representations
and warranties from the sellers regarding such sale of shares
(including, without limitation, representations and warranties
regarding good title to such shares, free and clear of any liens or
encumbrances) and to require all sellers’ signatures be
guaranteed by a national bank or reputable securities
broker.
(f)
The right of the Company and the Investor to repurchase Vested
Shares pursuant to this Section 3 shall terminate
upon the first to occur of the Sale of the Company or a Public
Offering.
(g)
Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Employee Stock by the Company shall
be subject to applicable restrictions contained in the Delaware
General Corporation Law and in the Company’s and its
Subsidiaries’ debt financing agreements with unaffiliated
third parties. If any such restrictions prohibit the repurchase of
Employee Stock hereunder which the Company is otherwise required to
make, the time periods provided in this Section 3 shall be
suspended, and the Company may make such repurchases as soon as it
is permitted to do so under such restrictions.
4.
Restrictions on Transfer .
(a)
Transfer of Stockholder Shares . The Executive shall not
sell, transfer, assign, pledge or otherwise dispose of (whether
with or without consideration and whether voluntarily or
involuntarily or
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by operation of law) any interest in
Executive’s Unvested Shares or Vested Shares, except in
accordance with the provisions of Section 3 hereof or
in accordance with Section 8 of the Stockholders
Agreement.
(b)
The certificates representing the Executive Stock shall bear the
following legend:
“THE SECURITIES
REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON AUGUST
31, 2007, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ ACT ”), AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE
OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A RESTRICTED
STOCK AGREEMENT BETWEEN THE COMPANY AND A CERTAIN INVESTOR DATED AS
OF AUGUST 31, 2007, AS AMENDED AND MODIFIED FROM TIME TO TIME. A
COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE.”
(c)
No holder of Executive Stock may sell, transfer or dispose of any
Executive 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.
5.
Transfer . Prior to transferring any Executive Stock (other
than a Public Sale or an Approved Sale (as defined in the
Stockholders Agreement)) to any Person, the Executive shall cause
the prospective transferee to be bound by this Agreement and to
execute and deliver to the Company and the Investor a counterpart
of this Agreement.
6. Non-Compete.
Non-Solicitation .
(a)
Executive hereby acknowledges that, during the course of his
employment with the Company and its Subsidiaries he has and shall
become familiar with the Company’s and its
Subsidiaries’ trade secrets and other Confidential
Information. Executive acknowledges and agrees that the Company and
its Subsidiaries would be irreparably damaged if he were to provide
services to or otherwise participate in the business of any person
or entity competing with the Company or its Subsidiaries or
providing services similar to those of the Company and its
Subsidiaries and that
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