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Exhibit 4.17
RESTRICTED STOCK PURCHASE AGREEMENT
(KEITH PRIBYL)
This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is
dated
as of September 24, 2004, by and between CHIEF MANUFACTURING
HOLDING CORP., a
Delaware corporation (the "Company"), and KEITH PRIBYL (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.
"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.
"Called Shares" has the meaning specified in Section 3.2(a)
hereof.
"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.
"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 3.3
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
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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), the Net
Worth of the
Common Stock of the Company immediately prior to such liquidation
or immediately
after such sale.
"Eligible Termination" has the meaning specified in Section
3.3(a)
hereof.
"Employment Agreement" means the Employment and Non-Competition
Agreement, dated as of September 24, 2004, between Chief
Manufacturing, Inc., a
Massachusetts corporation, and the Stockholder.
"Final Vesting Date" has the meaning specified in Section 3.1
hereof.
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"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.
"Lenders" has the meaning specified in Section 7.1 hereof.
"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.
"Original Price Per Share" means $3.00 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.
"Preferred Stock" means the Series A Preferred Stock and 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.
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"Put Notice" has the meaning specified in Section 3.3(b)
hereof.
"Put Shares" has the meaning specified in Section 3.3(a)
hereof.
"Repurchase Notice" has the meaning specified in Section 3.2(b)
hereof.
"Senior Debt" means any credit extensions or other obligations
outstanding at the applicable time of reference under working
capital, term loan
or acquisition financing arrangements that are extended on a
secured basis and
are customarily provided by commercial lenders. For the avoidance
of doubt,
"Senior Debt" shall not include any financing arrangements that
would
customarily be considered "mezzanine", "sub debt" or similar
financing
arrangements.
"Senior Debt Documents" has the meaning specified in Section
7.1
hereof.
"Series A Preferred Stock" means the Company's Series A
Participating
Preferred Stock, $0.001 par value per share.
"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.
"Stock Repurchase Agreement" means the Stock Repurchase
Agreement,
dated as of September 24, 2004, by and between the Company and the
Stockholder.
"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
3.4 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
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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.
"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. For the avoidance of
doubt,
expiration of the term of the Employment Agreement shall not
constitute a
resignation.
"Transfer" has the meaning specified in Section 4 hereof.
"Unvested Shares" has the meaning specified in Section 3.1
hereof.
"Vested Shares" has the meaning specified in Section 3.1
hereof.
"Vesting Acceleration Event" has the meaning specified in Section
3.1
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 195,993 shares of Class B Common Stock (the
"Purchased
Shares"), which will be evidenced by stock certificate number B24.
The aggregate
purchase price paid by the Stockholder for the Shares will be
$587,979 (the
"Purchase Price"). On the date hereof (A) the full amount of the
Purchase Price
will be paid to the Company by delivery of the Stockholder's
promissory note to
the Company in the aggregate principal amount of the Purchase Price
and in the
form of Exhibit B hereto (the "Note"), (B) the Company shall
deliver to the
Stockholder a certificate or certificates representing the
Purchased Shares
(each such certificate to bear the legends set forth in Section 6
hereof) and
(C) the Stockholder will deliver to and pledge the Purchased Shares
to the
Company pursuant to the terms of the Note, together with stock
powers or other
appropriate instruments of assignment thereof duly executed in
blank by the
Stockholder.
(b) The Company
represents and warrants that, after giving effect to
the purchase and sale effected hereby and all other agreements to
purchase
capital stock and securities of the Company as of the date hereof,
(i) the
authorized capital of the Company consists of (A) 36,485 shares of
Series A
Preferred Stock, 36,485 shares of which are issued and outstanding
on the date
hereof, (B) 30,000,000 shares of Class A Common Stock, no shares of
which are
issued and outstanding on the date hereof, (C) 25,000,000 shares of
Class B
Common Stock, 13,916,986 shares of which are issued and outstanding
on the date
hereof, and (D) 10,000,000 shares of Class C Common Stock,
4,300,001 shares of
which are issued and
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outstanding on the date hereof, (ii) all such outstanding capital
stock (other
than the Shares) is owned as set forth on Schedule 1 hereto and is
validly
issued and outstanding, fully paid and non-assessable and (iii)
there are no
commitments for the purchase or sale of, and no options, warrants
or other
rights to subscribe for or purchase, any securities of the Company
other than as
set forth on Schedule 1 hereto.
3. REPURCHASE OF SHARES.
3.1. VESTING OF SHARES. On and after the date hereof, the terms of
any
repurchase of any Shares shall differ depending on whether such
Shares are
"Unvested Shares" or "Vested Shares". Initially, 25% of the Shares
shall be
considered "Vested Shares" and all other Shares shall be considered
"Unvested
Shares". On each anniversary of September 24, 2004 prior to the
Termination of
Employment, commencing with September 24, 2005, 25% of the original
number of
Shares shall become "Vested Shares", such that all of the Shares
shall be Vested
Shares as of and after September 24, 2007 if the Termination of
Employment does
not occur prior to such date. If a Target Disposition Event or a
Public Sale
occurs prior to a Termination of Employment (the first such event
or sale, a
"Vesting Acceleration Event"), (a) 50% of the then Unvested Shares
shall become
Vested Shares upon the occurrence of such Vesting Acceleration
Event (the
Unvested Shares that become vested upon the occurrence of such
Vesting
Acceleration Event shall consist of the Unvested Shares that were
scheduled to
vest first chronologically following such Vested Acceleration
Event) and (b) the
remaining 50% of the then Unvested Shares shall become Vested
Shares on the
earlier of (i) the date that such Unvested Shares are scheduled to
vest under
this Agreement and (ii) the first anniversary date of the
occurrence of such
Vesting Accelerat
