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Exhibit 4.12
RESTRICTED STOCK PURCHASE AGREEMENT
(SCOTT GILL)
This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is
dated
as of June 17, 2005, by and between CHIEF MANUFACTURING HOLDING
CORP., a
Delaware corporation (the "Company"), and Scott Gill (the
"Stockholder").
WHEREAS, the Company wishes to sell and the Stockholder wishes to
buy
certain shares of the Company's Class B Common Stock (as defined in
Section 1
hereof) on the terms and subject to the restrictions contained in
this
Agreement; and
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:
"Act" has the meaning specified in Section 5(a) hereof.
"Actual Bonus Amount" means the amount (if any), determined on
an
after-tax basis, of the annual integration bonus paid by the
Company to the
Stockholder with respect to the twelve (12) month period ending on
the Bonus
Date. If a Termination of Employment shall occur at any time prior
to the Bonus
Date and for any reason, the Actual Bonus Amount shall be deemed to
be zero for
purposes of this Agreement.
"Affiliate" has the meaning specified in the Stockholder
Agreement.
"Agreement" has the meaning specified in the introductory
paragraph
hereof.
"Board" means the Board of Directors of the Company.
"Bonus Date" means September 24, 2005.
"Bonus Shortfall Event" means if (a) there shall occur a
Termination
of Employment at any time prior to the Bonus Date and for any
reason or (b) the
Actual Bonus Amount is less than the principal amount of the Note
outstanding at
the time the Actual Bonus Amount is paid to the Stockholder.
"Cause" means anything constituting "Cause" for termination under
the
Employment Agreement.
"Class A Common Stock" means the Company's Class A Voting
Common
Stock, $0.001 par value per share.
"Class B Common Stock" means the Company's Class B Non-Voting
Common
Stock, $0.001 par value per share.
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"Class C Common Stock" means the Company's Class C Voting
Common
Stock, $0.001 par value per share.
"Common Equity Value" means, as of any date, the fair market value
(as
determined by an Independent Appraiser pursuant to Section 3.2
hereof) of the
entire common stock equity of the Company (without premium for
control or
discounts for minority interests, restrictions on transfer or lack
of voting
rights or other premiums or discounts that would be applicable if
less than all
of the common stock equity is sold in a single transaction),
calculated as of
such date, plus the aggregate consideration to be paid to the
Company upon the
exercise of all then outstanding and exercisable warrants, options
or
convertible securities pursuant to which the Company is then
obligated to issue
shares of Common Stock (excluding any options or warrants for which
the exercise
price per share exceeds the Market Value Per Share of a share of
Common Stock as
of such date).
"Common Stock" means the Class A Common Stock, the Class B
Common
Stock and the Class C Common Stock, and any capital 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 Common
Stock upon any reclassification thereof.
"Company" has the meaning specified in the introductory
paragraph
hereof.
"Delayed Closing Date" has the meaning specified in Section 7.2
hereof.
"Disability" has the meaning specified in the Employment
Agreement.
"Disposition Event" means (a) (i) the sale of all or substantially
all
of the assets of the Company or its Subsidiaries in a single
transaction or
series of related transactions whether by liquidation, dissolution,
merger,
consolidation or sale or (ii) the sale or other transfer of at
least 51% of the
outstanding shares of Common Stock in a single transaction or a
series of
related transactions, in either case to any Person who is not an
Affiliate of
the Company, or of a stockholder thereof, immediately prior to such
transaction
or transactions, or (b) the effective time of any merger, share
exchange,
consolidation, or other business combination of the Company if
immediately after
such transaction Persons who hold a majority of the outstanding
voting
securities entitled to vote generally in the election of directors
of the
surviving entity (or the entity owning 100% of such surviving
entity) are not
Persons who, immediately prior to such transaction, held the
securities of the
Company entitled to vote generally in the election of
directors.
"Disposition Proceeds" means (i) in the case of a merger or any
other
stock transaction, (A) the average price per share received by the
holders of
Common Stock or by the Company or its Subsidiaries in connection
with such
transaction, multiplied by (B) the sum of (x) the total number of
shares of
Common Stock then outstanding, plus (y) the total number of shares
of Common
Stock issuable upon exercise or conversion of any then outstanding
and
exercisable warrants, options or convertible securities pursuant to
which the
Company is then obligated to issue shares of Common Stock, or (ii)
in the case
of any liquidation or sale of assets (including, without
limitation, the sale by
the Company of the capital stock of its Subsidiaries),
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the Net Worth of the Common Stock of the Company immediately prior
to such
liquidation or immediately after such sale.
"Employment Agreement" means the Amended and Restated Employment
and
Non-Competition Agreement, dated as of June 3, 2005, between
Chief
Manufacturing, Inc., a Massachusetts corporation, and the
Stockholder, as
amended, restated, supplemented or otherwise modified and in effect
from time to
time.
"Good Reason" has the meaning specified in the Employment
Agreement.
"Independent Appraiser" means an independent investment banking
firm,
accounting firm or appraiser of nationally recognized standing.
"Market Value Per Share" means, with respect to any date, for
any
share of Common Stock, (i) the Common Equity Value as of such date,
divided by
(ii) the sum of (x) the total number of shares of Common Stock then
outstanding,
plus (y) the total number of shares of Common Stock issuable upon
exercise or
conversion of any outstanding and exercisable warrants, options or
convertible
securities pursuant to which the Company is then obligated to issue
shares of
Common Stock (excluding any options or warrants for which the
exercise price per
share exceeds the Market Value Per Share of a share of Common Stock
as of such
date).
"Net Worth" means, in connection with any liquidation or sale
of
assets by the Company, the consolidated net worth of the Common
Stock of the
Company and its Subsidiaries, determined in accordance with
generally accepted
accounting principles, taking into account (i) the total
consideration received
by the Company for such transaction, (ii) the transaction costs
incurred in
connection with such transaction and (iii) any liabilities of the
Company and
its Subsidiaries whether or not to be discharged in connection with
such
transaction (including, without limitation, payment of the
liquidation value and
accrued dividends on any Preferred Stock of the Company).
"Note" has the meaning specified in Section 2(a) hereof.
"Note Shares" means the Purchased Shares purchased by the
Stockholder
hereunder by delivery of the Note to the Company.
"Original Price Per Share" means $300.00 per Share for each share
of
Class B Common Stock.
"Person" an individual, partnership, limited liability company,
corporation, association, trust, joint venture, unincorporated
organization, or
any government, governmental department or agency or political
subdivision
thereof.
"Plan" means the Company's 2003 Equity Incentive Plan attached
hereto
as Exhibit A.
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"Preferred Stock" means any capital stock of the Company which is
(a)
preferred as to dividends or assets over any other class of stock
of the
Company, (b) subject to redemption or (c) issued to the holders of
shares of
Preferred Stock upon any reclassification thereof.
"Public Sale" means the Company's initial public offering of
Common
Stock.
"Purchase Price" has the meaning specified in Section 2(a)
hereof.
"Purchased Shares" has the meaning specified in Section 2(a)
hereof.
"Repurchase Notice" has the meaning specified in Section 3.2
hereof.
"Shares" means (a) the Purchased Shares purchased by the
Stockholder
pursuant to Section 2(a) of this Agreement and (b) all shares of
the Company's
capital stock issued with respect to the Purchased Shares by way of
dividend or
stock split or in connection with any merger, consolidation,
recapitalization or
reorganization affecting the Company's capital stock.
"Shortfall Shares" means, as of any time of determination, the
number
of Shares equal to the quotient obtained by dividing (a) the excess
of (i) the
principal amount of the Note outstanding as of such time over (ii)
the Actual
Bonus Amount, by (b) the Original Price Per Share.
"Stockholder" has the meaning specified in the introductory
paragraph
hereof.
"Stockholder Agreement" means the Stockholder Agreement, dated as
of
August 29, 2003, among the Company and its stockholders, as amended
and in
effect from time to time.
"Stockholder Appraiser Notice" has the meaning specified in
Section
3.3 hereof.
"Subsidiary" means, with respect to the Company, any corporation,
a
majority (by number of votes) of the outstanding shares of any
class or classes
of which shall at the time be owned by the Company or by a
Subsidiary of the
Company, if the holders of the shares of such class or classes (a)
are
ordinarily, in the absence of contingencies, entitled to vote for
the election
of a majority of the directors (or persons performing similar
functions) of the
issuer thereof, even though the right so to vote has been suspended
by the
happening of such a contingency, or (b) are at the time entitled,
as such
holders, to vote for the election of a majority of the directors
(or persons
performing similar functions) of the issuer thereof, whether or not
the right so
to vote exists by reason of the happening of a contingency.
"Target Amount" means $110,000,000; provided, that if the
Company
enters into any extraordinary transaction, such as a business
acquisition or
disposition, the Board in the exercise of its business judgment may
adjust
upward or downward the Target Amount to take into account such
extraordinary
transaction.
"Target Disposition Event" means a Disposition Event in which
the
Disposition Proceeds equal or exceed the Target Amount.
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"Termination of Employment" means the termination of the
Stockholder's
employment with the Company or any of its Subsidiaries for any
reason,
including, without limitation, for resignation, death or Disability
of the
Stockholder, and whether or not for Cause.
"Transfer" has the meaning specified in Section 4 hereof.
2. PURCHASE AND SALE OF SHARES. (a) Subject to (i) the terms
and
conditions hereinafter set forth and in reliance on the
representations and
warranties contained herein, and (ii) the Company's receipt of any
and all
necessary consents, authorizations and approvals of the
transactions
contemplated by this Agreement, the Company hereby agrees to issue
and sell to
the Stockholder and the Stockholder hereby agrees to purchase from
the Company,
on the date hereof 1,176 shares of Class B Common Stock (the
"Purchased
Shares"). The aggregate purchase price paid by the Stockholder for
the Shares
will be $352,800 (the "Purchase Price"). On the date hereof (A)(i)
$202,800 of
the Purchase Price will be paid to the Company by wire transfer of
immediately
available funds and (ii) $150,000 of the Purchase Price will be
paid to the
Company by delivery of the Stockholder's promissory note to the
Company in the
form of Exhibit B hereto (the "Note"), (B) the Company shall
deliver to the
Stockholder the certificate representing the Note Shares (such
certificate to
bear the legends set forth in Section 6
