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Exhibit 10.9
RESTRICTED STOCK PURCHASE AGREEMENT
AGREEMENT (this "Agreement"), effective as of March 1, 2000
notwithstanding the date of signing, by SMALL BUSINESS INVESTMENT CORPORATION OF
AMERICA, INC., an Oregon corporation (the "Company"), and XXXX X. XXXXXX, an
individual and resident of Virginia ("Xxxxxx").
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE 1
PURCHASE OF SHARES
1.1 PURCHASE AND SALE. On the terms and subject to the conditions
set forth in this Agreement, the Company shall sell to Xxxxxx, and Xxxxxx shall
purchase from the Company, 2,000 shares of the Company's no par value common
stock (the "Shares").
1.2 CONSIDERATION. For the Shares, Xxxxxx shall pay tangible or
intangible property or benefit to the Company having a value of $100,000,
payable $83,887.25 by services to be performed by December 31, 2000 and
$16,112.75 by a promissory note in the form attached hereto as Exhibit A (the
"Note"), as provided in this Agreement, in accordance with Oregon Revised
Statutes, Section 60.147.
1.3 CERTIFICATE FOR SHARES. When this Agreement and the Note become
binding on the parties in accordance with their terms, the Shares shall be
validly issued, fully paid, and nonassessable. However, if the services are not
performed or the Note is not paid, the Shares may be canceled in whole or in
part. Until the services are performed and the Note is paid, any certificate for
the Shares may bear a legend restricting transfer or setting forth the
cancelability of the Shares, and the Company may take any other action provided
in Oregon Revised Statutes, Section 60.147(5).
ARTICLE 2
RESTRICTION
2.1 RESTRICTION. When issued, all of the Shares shall be subject to
a restriction because they shall be subject to the right of the Company to
cancel them (the "Restriction"). Unless and until the Restriction lapses, Xxxxxx
shall not transfer, assign, encumber, or otherwise dispose of the Shares or any
interest in them. On demand of the Company, Xxxxxx shall surrender any
certificate for the Shares for legending, escrow, or other arrangements
designated by the Company to restrict the transfer of the Shares or for
cancellation of the Shares in whole or in part.
2.2 LAPSE OF RESTRICTION. The right of the Company to cancel
1,677.745 of the Shares shall lapse only if Xxxxxx completes the performance of
the services described in Section 3.1 on or before 12:00 noon, Eastern Standard
Time, December 31, 2000. The right of the Company to cancel the remaining
322.255 Shares shall lapse only if Xxxxxx pays the Note, with interest at the
rate of six percent (6%) per annum on or before 12:00 noon, Eastern Standard
Time, December 31, 2001, when the Note is due.
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2.3 ADDITIONAL OR SUBSTITUTED SECURITIES. Until the Restriction
lapses as to any Shares, any new or additional securities that are issued with
respect to such Shares, or for which they are substituted, converted, or
exchanged, whether or not issued by the Company, shall immediately be subject to
the Restriction and all other provisions of this Agreement. Ratable adjustments
to the number of Shares subject to cancellation, as provided in Section 2.2,
shall be made.
2.4 CANCELLATION. Cancellation of any Shares by the Company
hereunder shall be by notice to Xxxxxx and shall be effective when given. As to
any Shares cancelled, neither Xxxxxx nor any transferee shall have any rights as
a shareholder of the Company. Xxxxxx releases the Company and all persons
associated with it from all claims or liabilities in connection with any
cancelled Shares.
2.5 DISTRIBUTIONS. Until the Restriction lapses as to any Shares,
distributions in respect of such Shares may, in the option of the Company, be
credited against the purchase price.
ARTICLE 3
SERVICES
3.1 SERVICES. The Company hereby engages Xxxxxx, and Xxxxxx accepts
the engagement, to provide services (the "Services") to the Company. The
Services shall consist of planning, coordinating, establishing, and managing an
investment education program, for the benefit of the Company, in conjunction
with one or more recognized churches. Xxxxxx shall be deemed to have completed
his performance of the Services at such time as a program with at least 500
members or having generated revenues of at least $100,000 to the Company has
been established.
3.2 INDEPENDENT CONTRACTOR. In performing the Services, Xxxxxx
shall be an independent contractor and not an employee of the Company.
Xxxxxx'x only compensation for the Services shall be 1,677.745 cancelable
Shares, as provided in Section 2.2.
ARTICLE 4
OTHER RESTRICTIONS ON TRANSFER
4.1 XXXXXX REPRESENTATIONS. In connection with the issuance and
acquisition of Shares under this Agreement, Xxxxxx hereby represents and
warrants to the Company as follows:
(a) Xxxxxx is acquiring and will hold the Shares for
investment for his account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the Securities
Act of 1933 (the "Securities Act") and applicable state securities laws.
(b) Xxxxxx understands that the Shares have not been
registered under the Securities Act and that the Shares must be held
indefinitely, unless they are subsequently registered under the Securities Act
or Xxxxxx obtains an opinion of counsel, in form and substance satisfactory to
the Company and its counsel, that such registration is not required. Xxxxxx
further acknowledges and understands that the Company is under no obligation to
register the Shares.
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(c) Xxxxxx is aware of the adoption of Rule 144 by the
Securities and Exchange Commission under the Securities Act, which permits
limited public resales of securities acquired in a non-public offering, subject
only to the satisfaction of certain conditions. Xxxxxx acknowledges and
understands that the conditions for resale set forth in Rule 144 have not been
satisfied and that the Company has no plans to satisfy these conditions in the
foreseeable future.
(d) Xxxxxx will not sell, transfer, or otherwise dispose of
the Shares in violation of the Securities Act, the Securities Exchange Act of
1934, or the rules promulgated thereunder, including Rule 144.
(e) Xxxxxx is a director of the Company. He has been
furnished with, and has had access to, such information as he or she considers
necessary or appropriate for deciding whether to invest in the Shares, and
Xxxxxx has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the issuance of the Shares.
(f) Xxxxxx is aware that his investment in the Company is a
speculative investment that has limited liquidity and is subject to the risk of
complete loss. Xxxxxx is able, without impairing his financial condition, to
hold the Shares for an indefinite period and to suffer a complete loss of his
investment in the Shares.
4.2 SECURITIES LAW RESTRICTIONS. The Company in its discretion may
impose restrictions upon the sale, pledge, or other transfer of the Shares
(including the placement of appropriate legends on stock certificates or the
imposition of stop-transfer instructions) if, in the judgment of the Company,
such restrictions are necessary or desirable in order to achieve compliance with
this Agreement, the Securities Act, the securities laws of any state, or any
other law.
ARTICLE 5
SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall inure to the benefit of, and be
binding upon, the Company and its successors and assigns and be binding upon
Xxxxxx and Xxxxxx'x legal representatives, heirs, legatees, distributees,
assigns, and transferees by operation of law, whether or not any such person has
become a party to this Agreement or has agreed in writing to join herein and to
be bound by the terms, conditions, and restrictions hereof.
ARTICLE 6
NO RETENTION RIGHTS
Nothing in this Agreement shall confer upon Xxxxxx any right to continue
in Service for any period of specific duration or interfere with or otherwise
restrict in any way the rights of the Company (or any parent or subsidiary
employing or retaining Xxxxxx) or of Xxxxxx, which rights are hereby expressly
reserved by each, to terminate his or her Service at any time and for any
reason, with or without cause.
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ARTICLE 7
TAX ELECTION
The acquisition of the Shares may result in adverse tax consequences
that may be avoided or mitigated by filing an election under Section 83(b) of
the Internal Revenue Code of 1986, as amended. Xxxxxx acknowledges that it is
his sole responsibility, and not the Company's, to file a timely election under
Section 83(b), even if Xxxxxx requests the Company or its representatives to
make this filing on his behalf.
ARTICLE 8
LEGENDS
In the discretion of the Company, all certificates for the Shares shall
bear substantially the following legends:
THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
ENCUMBERED, OR IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE
TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY AND XXXX X. XXXXXX.
SUCH AGREEMENT GRANTS TO THE COMPANY THE RIGHT TO CANCEL THE SHARES
UNDER CERTAIN CIRCUMSTANCES. THE SECRETARY OF THE COMPANY WILL, UPON
WRITTEN REQUEST, FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF
WITHOUT CHARGE.
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
If required by the authorities of any state in connection with the issuance of
the Shares, the legend or legends required by such state authorities shall also
be endorsed on all such certificates.
ARTICLE 9
NOTICE
Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery or upon deposit
with the United States Postal Service, by registered or certified mail, with
postage and fees prepaid. Notice shall be addressed to the Company at its
principal executive office and to Xxxxxx at the address that he or she most
recently provided to the Company.
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ARTICLE 10
ENTIRE AGREEMENT
This Agreement constitutes the entire contract between the parties
hereto with regard to the subject matter hereof. It supersedes any other
agreements, representations or understandings (whether oral or written and
whether express or implied) relating to the subject matter hereof.
ARTICLE 11
CHOICE OF LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Oregon, without regard to its conflict of laws
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SMALL BUSINESS INVESTMENT
CORPORATION OF AMERICA, INC.
/s/ XXXX X. XXXXXX By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxxx Xxxx X. Xxxxx, President
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