Exhibit 10.1(e)
================================================================================
RESTRICTED STOCK PURCHASE AGREEMENT
by and between
POLAROID HOLDING COMPANY
and
THE MANAGEMENT INVESTOR NAMED HEREIN
Dated as of , 2004
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I PURCHASE OF SHARES.......................................................................1
1.1. Sale and Purchase of Common Stock.......................................................1
1.2. Stock Certificates......................................................................1
1.3. Vesting.................................................................................2
1.4. Closing Date............................................................................2
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY................................2
2.1. Representations, Warranties and Covenants of the Company................................2
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MANAGEMENT INVESTOR...................3
3.1. Representations, Warranties and Covenants of the Management Investor....................3
ARTICLE IV MISCELLANEOUS...........................................................................4
4.1. Legend..................................................................................4
4.2. Tax Matters.............................................................................5
4.3. Amendment and Modification..............................................................5
4.4. Survival of Representations and Warranties..............................................5
4.5. Successors and Assigns..................................................................5
4.6. Severability............................................................................5
4.7. Notices.................................................................................6
4.8. Governing Law...........................................................................6
4.9. Headings................................................................................6
4.10. Counterparts............................................................................6
4.11. Further Assurances......................................................................6
4.12. No Effect on Employment or Directorship.................................................6
4.13. Entire Agreement........................................................................6
EXHIBITS
Exhibit A Amended and Restated Securities Holders Agreement
SCHEDULES
Schedule I Management Investor and Shares Purchased
DEFINED TERMS
Agreement..........................................................................................1
Board of Directors.................................................................................1
Closing Date.......................................................................................2
Common Stock.......................................................................................1
Company............................................................................................1
Management Investor................................................................................1
person.............................................................................................3
Securities Act.....................................................................................3
Securities Holders Agreement.......................................................................1
Shares.............................................................................................1
RESTRICTED STOCK PURCHASE AGREEMENT
THIS IS A
RESTRICTED STOCK PURCHASE AGREEMENT, dated as of _________
__, 2004 (the "AGREEMENT"), by and among
Polaroid Holding Company, a
Delaware
corporation (the "COMPANY"), the individual listed on the signature page hereto
as a "Management Investor" (a "MANAGEMENT INVESTOR").
BACKGROUND
The Management Investor is (i) employed by the Company and/or its
subsidiaries, and/or (ii) a member of the Board of Directors of the Company (the
"BOARD OF DIRECTORS"). To increase the Management Investor's personal and
proprietary interest in the Company's success and progress, the Company desires
to sell, and the Management Investor desires to purchase, shares of Common
Stock, par value $.001 per share ("COMMON STOCK"), of the Company.
TERMS
In consideration of the mutual covenants contained herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF SHARES
1.1. SALE AND PURCHASE OF COMMON STOCK. (a) The Management Investor
hereby purchases from the Company, and the Company hereby sells to the
Management Investor, the number of shares (the "SHARES"), of Common Stock set
forth opposite the Management Investor's name on SCHEDULE I hereto.
(b) The purchase price for the Shares is set forth on SCHEDULE
I, payable in cash or by plain check. The Company hereby acknowledges receipt of
the purchase price from the Management Investor.
(c) Concurrently herewith, the Management Investor is executing
a joinder and becoming a party to an Amended and Restated Securities Holders
Agreement (the "SECURITIES HOLDERS AGREEMENT") among the Company, the Management
Investor and others, a copy of which is attached as EXHIBIT A hereto, and the
Management Investor hereby consents to add the Shares to SCHEDULE I to the
Securities Holders Agreement and agrees that the Shares are "Investment
Securities" as defined therein. The Securities Holder Agreement imposes certain
transfer restrictions on the Shares and grants certain repurchase option rights
to the Company.
1.2. STOCK CERTIFICATES. Concurrently herewith, the Company has
presented to the Management Investor for examination, a certificate evidencing
the Shares purchased by the
Management Investor pursuant hereto, registered in the name of the Management
Investor. The certificates evidencing the Shares of the Management Investor
shall remain in the physical custody of the Company or its designee until such
time as the purchase option rights set forth in the Securities Holder Agreement
have lapsed. Upon lapse of the purchase option rights, the Company shall
promptly deliver to the Management Investor one or more certificates
representing the Shares purchased by the Management Investor, with any legend
referring to such purchase option rights removed from such certificate(s).
1.3. VESTING. The vesting for the Shares shall be as set forth in the
Securities Holders Agreement.
1.4. CLOSING DATE. The "Closing Date" (as such term is defined in the
Securities Holders Agreement) for the Management Investor is as set forth on
SCHEDULE I hereto.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to, and covenants and agrees with the Management
Investor as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) The Company has all requisite corporate power and corporate
authority to execute, deliver and perform this Agreement and to consummate the
transactions provided for herein.
(c) The execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated hereby, including, but not limited to, the issuance and sale of the
Shares hereunder, have been duly authorized, and this Agreement constitutes the
valid and binding obligation of the Company, enforceable against it in
accordance with the terms hereof.
(d) The Shares issued to the Management Investor under Article I
hereof have been validly issued and are fully paid and non-assessable.
2
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE MANAGEMENT INVESTOR
3.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MANAGEMENT
INVESTOR. The Management Investor represents and warrants to, and covenants and
agrees with the Company that:
(a) The Management Investor has the requisite legal right, power
and authority to enter into this Agreement and to perform the Management
Investor's obligations hereunder and to consummate the transactions provided for
herein without the need for the consent of any other person; this Agreement has
been duly authorized, executed and delivered by the Management Investor; and
this Agreement constitutes the valid and binding obligation of the Management
Investor, enforceable against the Management Investor in accordance with the
terms hereof. As used herein, the term "PERSON" means an individual or a
corporation, partnership, limited liability company, joint venture, trust,
regulatory or governmental agency or authority or other organization or entity
of any kind.
(b) The Shares are being purchased by the Management Investor
hereunder for investment, and not with a view to any distribution thereof that
would violate the Securities Act of 1933, as amended (the "SECURITIES ACT"), or
the applicable securities laws of any state. The Management Investor will not
distribute the Shares in violation of the Securities Act or the applicable
securities laws of any state.
(c) The Management Investor understands that the Shares have not
been registered under the Securities Act or the securities laws of any state and
must be held indefinitely unless subsequently registered under the Securities
Act and any applicable state securities laws or unless an exemption from such
registration becomes or is available.
(d) In formulating a decision to enter into this Agreement, the
Management Investor has relied solely upon (i) the provisions of this Agreement
and (ii) an independent investigation of the Company's business and (iii)
consultations with his or her legal and financial advisors with respect to this
Agreement and the nature of his or her investment; and that in entering into
this Agreement no reliance was placed by the Management Investor upon any
representations or warranties other than those contained in this Agreement.
(e) The Management Investor is financially able to hold the
Shares for long-term investment, believes that the nature and amount of the
Shares being purchased are consistent with his or her overall investment program
and financial position, and recognizes that there are substantial risks involved
in the purchase of the Shares.
(f) The Management Investor confirms that (A) he or she is
familiar with the business of the Company, (B) he or she has had the opportunity
to ask questions of the officers and directors of the Company and to obtain (and
that the Management Investor has received to
3
his or her satisfaction) such information about the business and financial
condition of the Company as he or she has reasonably requested, and (C) the
Management Investor, either alone or with a representative (as defined in Rule
501(h) promulgated under the Securities Act), has such knowledge and experience
in financial and business matters that the Management Investor is capable of
evaluating the merits and risks of the prospective investment in the Shares.
(g) The Management Investor agrees not to disclose the existence
and contents of this Agreement without the prior written consent of the Company,
unless disclosure of the Agreement or its contents is required by law; provided,
however, that the existence and contents of this Agreement may be disclosed in
confidence to the Management Investor's attorneys, tax consultants and financial
consultants who also agree not to disclose the existence and contents of this
Agreement.
(h) The Management Investor's residence address is as set forth
below his or her signature to this Agreement.
ARTICLE IV
MISCELLANEOUS
4.1. LEGEND. All certificates representing the Shares shall bear the
following legend in addition to any other legend required under applicable law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF WITHOUT
REGISTRATION UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR THE DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT
TO THE TERMS AND CONDITIONS OF A SECURITIES HOLDERS AGREEMENT BY
AND AMONG THE COMPANY AND THE HOLDERS SPECIFIED THEREIN, AS
AMENDED FROM TIME TO TIME (THE "SECURITIES HOLDERS AGREEMENT"), A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY. THE SALE, TRANSFER, ASSIGNMENT OR OTHER DISPOSITION OF
THE SECURITIES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND THE
SECURITIES ARE TRANSFERABLE OR OTHERWISE DISPOSABLE ONLY UPON
PROOF OF COMPLIANCE THEREWITH.
4
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT
TO A REPURCHASE RIGHT OF THE COMPANY AS SET FORTH IN THE
SECURITIES HOLDERS AGREEMENT, A COPY OF WHICH AGREEMENT IS ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
4.2. Tax Matters. (a) TAX WITHHOLDING. The Company may deduct from any
payment to be made to the Management Investor any amount that federal, state or
local tax law requires to be withheld with respect to the purchase, holding or
disposition of Shares by such Management Investor.
(b) SECTION 83(b) ELECTION. The Management Investor shall make
the election to include in his or her income, the excess of the fair market
value as of the date hereof of the Shares purchased pursuant hereto over the
purchase price per Share set forth on SCHEDULE I, pursuant to Section 83(b) of
the Internal Revenue Code of 1986, as amended, in the manner and within the time
period specified by the regulations promulgated thereunder, and shall promptly
furnish a copy of such election to the Company after it has been filed. The
parties agree that the fair market value of the Shares as of the date hereof is
$[___] per share. THE COMPANY SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY
ADVERSE TAX CONSEQUENCES TO A MANAGEMENT INVESTOR FOR HIS OR HER FAILURE TO MAKE
SUCH SECTION 83(B) ELECTION OR HIS OR HER MAKING SUCH SECTION 83(B) ELECTION.
4.3. AMENDMENT AND MODIFICATION. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment,
modification or waiver is set forth in a writing executed by the Company and the
Management Investor. Notwithstanding the foregoing, in the case of any
amendment, modification or waiver to the provisions of Section 1.3 hereof, such
amendment, modification or waiver must be set forth in a writing executed by the
Company, OEP and the Management Investor.
4.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements set forth in this Agreement shall survive
the date hereof.
4.5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and permitted
assigns and executors, administrators and heirs of each party hereto. This
Agreement, and any rights or obligations existing hereunder, may not be assigned
or otherwise transferred by any party without the prior written consent of the
other parties hereto.
4.6. SEVERABILITY. In the event that any provision of this Agreement
or the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall remain in full force and effect unless deletion of such
provision causes this Agreement to become materially adverse to any party, in
which event the parties shall use reasonable efforts to arrive at an
accommodation which best preserves for the parties the benefits and obligations
of the offending provision.
5
4.7. NOTICES. All notices provided for or permitted hereunder shall be
made in writing by hand-delivery, registered or certified first-class mail, fax
or reputable courier guaranteeing overnight delivery to the other party at the
following addresses (or at such other address as shall be given in writing by
any party to the others):
If to the Company, to:
Polaroid Holding Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Management Investor, to the Management Investor's
address as set forth on the signature page hereto.
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; four business days after being
deposited in the mail, postage prepaid, if mailed; when confirmation of
transmission is received, if faxed during normal business hours (or, if not
faxed during normal business hours, the next business day after confirmation of
transmission); and on the next business day, if timely delivered to a reputable
courier guaranteeing overnight delivery.
4.8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of
Delaware, without giving
effect to principles of conflicts of law.
4.9. HEADINGS. The headings preceding the text of the sections and
subsections of this Agreement are for convenience of reference only and shall
not constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
4.10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
4.11. FURTHER ASSURANCES. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
4.12. NO EFFECT ON EMPLOYMENT OR DIRECTORSHIP. Nothing herein contained
shall confer on the Management Investor the right to (a) remain in the employ of
the Company or any of its subsidiaries or affiliates, or (b) remain a member of
the Board of Directors.
4.13. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding among the parties and supersedes all prior agreements and
understandings, written
6
or oral, relating to the subject matter of this Agreement, it being understood
the Management Investor is contemporaneously entering into other agreements and
instruments, including the Securities Holders Agreement.
7
IN WITNESS WHEREOF, the parties hereto have executed this
Restricted Stock Purchase Agreement the day and year first above written.
POLAROID HOLDING COMPANY
By
---------------------------------------
Name:
Title:
MANAGEMENT INVESTOR:
-------------------------------------------
Name:
Address:
[SIGNATURE PAGE TO
RESTRICTED STOCK PURCHASE AGREEMENT]
8
SCHEDULE I
MANAGEMENT INVESTOR AND SHARES PURCHASED
NUMBER OF SHARES OF PURCHASE PRICE AGGREGATE
MANAGEMENT INVESTOR COMMON STOCK PER SHARE PURCHASE PRICE
[Name] $
The Management Investor's Closing Date is _____________, 2004.
9
EXHIBIT A
[Amended and Restated Securities Holder Agreement]
10
ATTACHMENT
ATTACHMENT FOR DIRECTORS AND EXECUTIVE OFFICERS
NUMBER OF SHARES OF
INVESTOR COMMON STOCK CLOSING DATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 36,920 July 31, 2002
o Additional Issue 5/23/2003 5,520 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 42,440 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 145,000 January 5, 2004
------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 32,690 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 384,620 July 31, 2002
o Additional Issue 5/27/2003 57,470 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 353,670 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ 36,920 July 31, 2002
o Additional Issue 5/27/2003 5,520 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 36,920 July 31, 2002
o Additional Issue 5/27/2003 5,520 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 923,080 July 31, 2002
o Additional Issue July 11, 2003 137,930 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 61,540 July 31, 2002
o Additional Issue 5/27/2003 9,190 July 31, 2002
o Additional Issue July 31, 2002 100,000 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ 111,688 February 24, 2004
------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ 176,830 July 31, 2002
------------------------------------------------------------------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 615,380 July 31, 2002
o Additional Issue 5/26/2003 91,960 July 31, 2002
------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇................................. 36,920 July 31, 2002
o Additional Issue 5/23/2003 5,520 July 31, 2002
------------------------------------------------------------------------------------------