EX-10.9



 





EXECUTION COPY

EXHIBIT 10.9




MANAGEMENT STOCK PURCHASE AGREEMENT




     This MANAGEMENT STOCK PURCHASE AGREEMENT (this “Agreement”), is entered into as of
this 3rd day of August, 2005, by and among SOI Holdings, Inc., a Delaware corporation (the
“Company”), and Mike Willson (the “Executive”).



R
E C I T A L S:




     WHEREAS, Strategic Outsourcing, Inc., a Delaware corporation (“SOI”), a wholly-owned
subsidiary of the Company and the Executive have entered into an employment agreement, dated as of
August 3, 2005 (such employment agreement, as it may be amended, superceded or replaced from time
to time, the “Employment Agreement”); and



     WHEREAS, the Board of Directors of the Company (the “Company Board”) has determined to
sell to the Executive on the date hereof (the “Effective Date”) shares of Common Stock, par
value $0.01 per share, of the Company (the “Company Common Stock”) and Preferred Stock, par
value $0.01 per share, of the Company (the “Company Preferred Stock”), provided for herein
(the “Stock Purchase”), such sale to be subject to the terms and conditions set forth
herein.



     NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties
hereto agree as follows:



     1. Definitions. Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Employment Agreement. For purposes of this Agreement, the
following terms shall have the following meanings:



     “Fair Market Value” shall mean (a) in the case of the Company Common Stock, (i) if the
Company Common Stock is listed on a national securities exchange, the average of the highest and
lowest sale prices of a share of the Company Common Stock reported as having occurred on the
primary exchange with which the Company Common Stock is listed and traded on the date prior to such
date, or, if there is no such sale on that date, then on the last preceding date on which such a
sale was reported; (ii) if the Company Common Stock is not listed on any national securities
exchange but is quoted in the Nasdaq National Market (the “Nasdaq”) on a last sale basis,
the average between the high bid price and low ask price reported on the date prior to such date,
or, if there is no such sale on that date, then on the last preceding date on which a sale was
reported; or (iii) if the Company Common Stock is not listed on a national securities exchange nor
quoted in the Nasdaq on a last sale basis, the amount determined by the compensation committee of
the Board of Directors (the “Committee”), or if no such committee has yet been established,
the Board of Directors, to be the fair market value based upon a good faith attempt to value the
Company Common Stock accurately and computed in accordance with applicable regulations of the Internal Revenue Service; and (b) in the









 



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case of
the Company Preferred Stock, the amount determined by the Committee to be the fair market value
based upon a good faith attempt to value the Company Preferred Stock accurately, and computed in
accordance with the applicable regulations of the Internal Revenue Service.



     “IPO” shall mean the first sale in an underwritten offering of the Company Common
Stock pursuant to a Registration Statement on Form S-1 or otherwise under the Securities Act.



     “SEC” shall mean the Securities and Exchange Commission.



     “Securities Act” shall mean the Securities Act of 1933, as amended.



     2. Purchase of Shares. Subject to the terms and conditions set forth in this
Agreement, the Company hereby sells to the Executive, and the Executive hereby purchases from the
Company, effective as of the Effective Date (which is the date hereof), 3,378.38 shares of the
Company Common Stock (the “Company Common Shares”) for an aggregate purchase price of
$2,500 (the “Company Common Initial Value”) and 3,375.15 shares of the Company Preferred
Stock (the “Company Preferred Shares”) for an aggregate purchase price of $247,500 (the
“Company Preferred Initial Value”). The Company Common Shares and the Company Preferred
Shares are sometimes referred to herein as the “Shares,” and the Company Common Initial
Value and the Company Preferred Initial Value are sometimes referred to herein as the “Initial
Values.”



     3. Certificates. Certificates evidencing the Company Common Shares and the Company
Preferred Shares shall be issued by the Company and shall be registered in the Executive’s name on
the stock transfer books of the Company promptly after the date hereof.



     4. Effect of Termination of Employment.



          (a) Upon the termination of the Executive’s employment with SOI, the Shares shall be subject
to the Call Option described in Section 4(b) below and under certain circumstances to the Put
Option described in Section 4(c) below.




          (b) Call Option.





          (i) Other than as set forth in the second sentence of Section 4(b)(vii), upon
and following (A) a termination of the Executive’s employment by the Company for
Cause or (B) the termination of the Executive’s employment for any reason (other
than the Executive’s death) within one year following the date of this Agreement
for any reason (or no reason), the Company shall have the right and option (the
“Call Option”), but not the obligation, to purchase from the Executive (or
his estate or permitted transferees) any or all of the shares of Company Common
Stock or Company Preferred Stock, as the case may be, owned by the Executive;
provided, that if the Executive is entitled to exercise his Put Right in









 



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accordance
with Section 4(c) and he does exercise his Put Right, the provisions of Section
4(c) shall govern the repurchase of Shares by the Company. The purchase price (the
“Call Price”) of the Company Common Stock or Company Preferred Stock, as
the case may be, subject to purchase under this provision (the “Called
Shares”) shall be (x) in the case of (A) a termination of the Executive’s
employment by the Company for Cause or (B) the termination of the Executive’s
employment for any reason (other than the Executive’s death) within one year
following the date of this Agreement, the lower of the Company Common Initial Value
or the Company Preferred Initial Value, as the case may be, of such Called Shares
or the Fair Market Value of such Called Shares on the date of the applicable “Call
Notice” (as defined below).




          (ii) The Company may exercise the Call Option by delivering or mailing to the
Executive (or to his estate, if applicable), in accordance with Section 15 of this
Agreement, written notice of exercise (a “Call Notice”). The Call Notice
shall specify the date thereof, the number of Called Shares and the Call Price.




          (iii) Within ten (10) days after his receipt of the Call Notice, the Executive
(or his estate) shall tender to the Company, at its principal office the
certificate or certificates representing the Called Shares, duly endorsed in blank
by the Executive (or his estate) or with duly endorsed stock powers attached
thereto, all in form suitable for the transfer of such shares to the Company. Upon
its receipt of such shares, the Company shall pay to the Executive the aggregate
Call Price therefor, in cash or by wire transfer of immediately available funds.




          (iv) The Company will be entitled to receive customary representations and
warranties from the Executive (or his estate) regarding the sale of the Called
Shares pursuant to the exercise of the Call Option as may reasonably requested by
the Company, including but not limited to the representation that the Executive has
good and marketable title to the Called Shares to be transferred free and clear of
all liens, claims and other encumbrances.




          (v) If the Company delivers a Call Notice, then from and after the time of
delivery of the Call Notice, the Executive shall no longer have any rights as a
holder of the Called Shares subject thereto (other than the right to receive
payment of the Call Price as described above), and such Called Shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company shall be deemed to be the owner and holder of such Called Shares.



          (vi) Any Company Common Shares as to which the Call Option is not exercised
will remain subject to all terms and conditions of









 



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this Agreement, including the
continuation of the Company’s right to exercise the Call Option.




          (vii) This Section 4(b) is in addition to, and not in lieu of, any rights and
obligations of the Executive and the Company in respect of the Shares contained in
the “Stockholders Agreement” (as defined below). Notwithstanding the above, this
Section 4(b) shall be ineffective as to each Company Common Share on and following
an IPO or any other event which causes the Company Common Stock, or other
securities for which all or substantially all of the Company Common Stock may have
been exchanged, to be or become listed for trading on or over an established
securities market or established trading system.



          (c) Put Right.





          (i) For a period 10 business days following the termination of the Executive’s
employment with the Company by the Company without Cause within one year of the
date of this Agreement, the Executive shall have the right and option (the “Put
Right”), but not the obligation, to sell to the Company any or all of the shares of
Company Common Stock or Company Preferred Stock, as the case may be, owned by the
Executive. The purchase price (the “Put Price”) of the Company Common Stock or
Company Preferred Stock, as the case may be, subject to purchase under this
provision (the “Put Shares”) shall be the Company Common Initial Value or the
Company Preferred Initial Value, as the case may be, of such Put Shares.




          (ii) Within ten (10) days after his written notice of exercise of the Put
Right (the ‘Put Notice”), which Put Notice shall specify the number of Put Shares,
the Executive shall tender to the Company, at its principal office the certificate
or certificates representing the Put Shares, duly endorsed in blank by the
Executive or with duly endorsed stock powers attached thereto, all in form suitable
for the transfer of such shares to the Company. Upon its receipt of such shares,
the Company shall pay to the Executive the aggregate Put Price therefor, in cash or
by wire transfer of immediately available funds.




          (iii) The Company will be entitled to receive customary representations and
warranties from the Executive (or his estate) regarding the sale of the Put Shares
pursuant to the exercise of the Put Option as may reasonably requested by the
Company, including but not limited to the representation that the Executive has
good and marketable title to the Put Shares to be transferred free and clear of all
liens, claims and other encumbrances.



          (iv) If the Executive delivers a Put Notice, then from and after the time of
delivery of the Put Notice, the Executive shall no










 



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longer have any rights as a
holder of the Put Shares subject thereto (other than the right to receive payment
of the Put Price as described above), and such Put Shares shall be deemed purchased
in accordance with the applicable provisions hereof and the Company shall be deemed
to be the owner and holder of such Put Shares.




          (v) Any Company Common Shares as to which the Put Option is not exercised will
remain subject to all terms and conditions of this Agreement, including the
continuation of the Company’s right to exercise the Call Option.




          (vi) This Section 4(c) is in addition to, and not in lieu of, any rights and
obligations of the Executive and the Company in respect of the Shares contained in
the “Stockholders Agreement” (as defined below). Notwithstanding the above, this
Section 4(c) shall be ineffective as to each Company Common Share on and following
an IPO or any other event which causes the Company Common Stock, or other
securities for which all or substantially all of the Company Common Stock may have
been exchanged, to be or become listed for trading on or over an established
securities market or established trading system.



     5. Rights as a Stockholder; Dividends. The Executive shall be the record owner of the
Shares unless and until such shares are sold or otherwise disposed of, and as record owner shall be
entitled to all rights of a common stockholder of the Company, including, without limitation,
voting rights, if any, with respect to the Shares; provided that the Shares shall
be subject to the limitations on transfer and encumbrance set forth in this Agreement and the
stockholders agreement executed and entered into by and among the Company and the other parties
thereto prior to the Effective Date (such stockholders agreement, as it may be amended, superceded
or replaced from time to time, the “Stockholders Agreement”). A copy of the Stockholders
Agreement, as in effect on the date hereof, is annexed hereto as Exhibit A.



     6. Restrictive Legend. All certificates representing Shares shall have affixed
thereto a legend in substantially the following form, in addition to any other legends that may be
required under federal or state securities laws, unless and to the extent determined inapplicable
or unnecessary by the Company:




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF
ANY STATE. THE SECURITIES MAY NOT BE OFFERED AND SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR PURSUANT TO A WRITTEN









 



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OPINION OF COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.




THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION (EACH
A “TRANSFER”) AND VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE STOCKHOLDERS AGREEMENT, DATED AUGUST
3, 2005, BY AND AMONG THE COMPANY AND THE OTHER PERSONS NAMED THEREIN, AND THE
MANAGEMENT STOCK PURCHASE AGREEMENT, DATED AUGUST 3, 2005, BY AND AMONG THE COMPANY
AND THE OTHER PERSONS NAMED THEREIN, A COPY OF EACH WHICH MAY BE INSPECTED AT THE
COMPANY’S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER OF SUCH
SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE
IN COMPLIANCE WITH THE TERMS OF THE STOCKHOLDERS AGREEMENT AND THE MANAGEMENT STOCK
PURCHASE AGREEMENT.



     7. Transferability. Neither the Executive nor any transferee of the Executive
(including any beneficiary, executor or administrator) shall assign, alienate, pledge, attach, sell
or otherwise transfer or encumber the Shares or, prior to the IPO, the Company Common Shares,
except in accordance with the applicable provisions of this Agreement and the Stockholders
Agreement; the consequences of the termination of the Executive’s employment with SOI under the
terms of this Agreement shall continue to be applied with respect to the transferees of the
Executive to the extent specified in this Agreement.



     8. Securities Laws. The Executive represents, warrants and covenants as follows:



          (a) The Executive is acquiring the Shares for his own account and not with a view to, or for
sale in connection with, any distribution of the Shares in violation of the Securities Act or any
rule or regulation under the Securities Act or in violation of any applicable state securities law.




          (b) The Executive has had such opportunity as he has deemed adequate to obtain from
representatives of the Company such information as is necessary to permit him to evaluate the
merits and risks of his investment in the Company.




          (c) The Executive has sufficient experience in business, financial and investment matters to
be able to evaluate the risks involved in acquiring of the Shares and to make an informed
investment decision with respect to such investment.










 



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          (d) The Executive can afford the complete loss of the value of the Shares and is able to bear
the economic risk of holding such shares for an indefinite period.




          (e) The Executive understands that (i) the Shares have not been registered under the
Securities Act and are “restricted securities” within the meaning of Rule 144 under the Securities
Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are
subsequently registered under the Securities Act or an exemption from registration is then
available; (iii) in any event, the exemption from registration under Rule 144 will not be available
for at least one (1) year and even then will not be available unless a public market then exists
for such shares, adequate information concerning the Company (as applicable) is then available to
the public, and other terms and conditions of Rule 144 are complied with and (iv) there is now no
registration statement on file with the SEC with respect to the Shares and, except as set forth in
Section 5(b) hereof or in the Stockholders Agreement, there is no commitment on the part of the
Company to make any such filing.




     9. Adjustments for Stock Splits, Stock Dividends, etc.



          (a) If from time to time during the term of this Agreement there is any stock split-up, stock
dividend, stock distribution or other reclassification of the Company Common Stock and/or the
Company Preferred Stock, any and all new, substituted or additional securities to which the
Executive is entitled by reason of his ownership of the Shares shall be immediately subject to the
terms of this Agreement.




          (b) If the Company Common Stock and/or the Company Preferred Stock, is converted into or
exchanged for, or stockholders of the Company receive by reason of any distribution in total or
partial liquidation, securities of another corporation, or other property (including cash),
pursuant to any merger of the Company or acquisition of assets, then the rights of the Company
under this Agreement shall inure to the benefit of the Company’s successor and this Agreement shall
apply to the securities or other property received upon such conversion, exchange or distribution
in the same manner and to the same extent as the Shares.




     10. Confidentiality of the Agreement. The Executive agrees to keep confidential the
terms of this Agreement. This provision does not prohibit the Executive from providing this
information on a confidential and privileged basis to the Executive’s attorneys or accountants for
purposes of obtaining legal or tax advice or as otherwise required by law, regulation or stock
exchange rule.



     11. Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
and each other provision of the Agreement shall be severable and enforceable to the extent
permitted by law.



     12. Waiver. Any right of the Company contained in the Agreement may be waived in
writing by the Company Board. No waiver of any right hereunder by









 



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any party shall operate as a waiver of any other right, or as a waiver of the same right with
respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any
other breach or a waiver of the continuation of the same breach.



     13. No Rights to Employment. Nothing contained in this Agreement shall be construed
as giving the Executive any right to be retained, in any position, as an employee, consultant or
director of SOI or its affiliates or shall interfere with or restrict in any way the right of SOI
or its affiliates, which are hereby expressly reserved, to remove, terminate or discharge the
Executive at any time for any reason whatsoever.



     14. Entire Agreement. This Agreement and the Stockholders Agreement contain the
entire agreement and understanding of the parties hereto with respect to the subject matter
contained herein and supersede all prior communications, representations and negotiations in
respect thereto. No change, modification or waiver of any provision of this Agreement shall be
valid unless the same be in writing and signed by the parties hereto.



     15. Notices. Any notice, consent, request or other communication made or given in
accordance with this Agreement shall be in writing and shall be deemed to have been duly given when
actually received or, if mailed, three days after mailing by registered or certified mail, return
receipt requested, or one business day after mailing by a nationally recognized express mail
delivery service with instructions for next-day delivery, to those persons listed below at their
following respective addresses or at such other address or person’s attention as each may specify
by notice to the others:



     To the Company:



     SOI Holdings, Inc.



     c/o Clarion Capital Partners, LLC




     110 East 59th Street, Suite 2100




     New York, New York 10022




     Attention: Marc A. Utay




     with a copy to:



     Paul, Weiss, Rifkind, Wharton & Garrison LLP



     1285 Avenue of the Americas




     New York, New York 10019-6064




     Attention: Paul D. Ginsberg, Esq.




     To the Executive:




The most recent address for the Executive in the records of the Company or SOI.
The Executive hereby agrees to promptly provide the Company









 



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and SOI with written
notice of any change in the Executive’s address for so long as this Agreement
remains in effect.



     16. Beneficiary. The Executive may file with the Company Board a written designation
of a beneficiary on such form as may be prescribed by the Company Board and may, from time to time,
amend or revoke such designation. If no designated beneficiary survives the Executive, the
executor or administrator of the Executive’s estate shall be deemed to be the Executive’s
beneficiary. The Executive’s beneficiary shall succeed to the rights and obligations of the
Executive hereunder upon the Executive’s death, except as may be otherwise described herein.



     17. Successors. The terms of this Agreement shall be binding upon and inure to the
benefit of the Company, its respective successors and assigns, and of the Executive and the
beneficiaries, executors, administrators, heirs and successors of the Executive.



     18. Modifications. No change, modification or waiver of any provision of this
Agreement shall be valid unless the same be in writing and signed by the parties hereto.



     19. Shares Subject to the Stockholders Agreement. By entering into this Agreement the
Executive agrees and acknowledges that the Executive has received and read the Stockholders
Agreement. The Stockholders Agreement as it may be amended from time to time is hereby
incorporated herein by reference. In the event of a conflict between any term or provision
contained herein and any terms or provisions of the Stockholders Agreement, the applicable terms
and provisions of the Stockholders Agreement will govern and prevail except with respect to Section
4(b) hereof.



     20. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE WHOLLY PERFORMED WITHIN THAT STATE. ANY ACTION TO ENFORCE THIS AGREEMENT MUST BE BROUGHT IN A
COURT SITUATED IN, AND THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF, COURTS SITUATED IN NEW
YORK COUNTY, NEW YORK. EACH PARTY HEREBY WAIVES THE RIGHTS TO CLAIM THAT ANY SUCH COURT IS AN
INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH ACTION.



     21. JURY TRIAL WAIVER. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY
TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR
HEARD IN ANY COURT.



     22. Headings. The headings of the Sections hereof are provided for convenience only
and are not to serve as a basis for interpretation or construction, and shall not constitute a
part, of this Agreement.










 



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     23. Signature in Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. The parties hereto confirm that any
facsimile copy of another party’s executed counterpart of this Agreement (or its signature page
thereof) will be deemed to be an executed original thereof.









 



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set
forth above.



	 	 	 	 	 
	 	SOI HOLDINGS, INC.

 	 
	 	/s/ Marc A. Utay
 	 
	 	By: 	 
	 	Title:  	 	 
	 
	 	 	 
	 	     /s/ Mike Willson
 	 
	 	Mike Willson