EXHIBIT 10.59
VERTEL CORPORATION
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (the "Agreement"), dated November 27, 1998,
is by and between Vertel Corporation, a California corporation (the "Company")
and M.Y. Xxxxxxx (the "Seller").
RECITALS
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WHEREAS, the Seller previously purchased from the Company an aggregate of
1,025,000 shares of its Common Stock (the "Shares") pursuant to certain Exercise
Notice and Stock Purchase Agreements (the "Agreements"). The purchase price for
the Shares was paid by the Seller with promissory notes, dated January 30, 1996
and March 18, 1996, in the aggregate amount of $2,069,625 (such notes or any
notes subsequently provided in lieu of such notes, the "Promissory Notes"). It
was anticipated at the time of such option exercises that it was appropriate and
necessary for the Seller to exercise his stock options so that he would be
eligible to receive a distribution of shares of what then constituted one of the
Company's subsidiaries (formerly named "Vertel Corporation" and currently named
"Vertel I") in connection with the Company's plans at that time for liquidity of
such subsidiary. While the distribution of shares of such subsidiary to the
Company's shareholders did not occur and instead the Company spun off its former
subsidiary Sonoma Systems, the Seller may claim to have relied detrimentally
with respect to the Company's plans concerning the proposed distribution. The
Company and the Seller desire to enter into this Agreement to provide for the
purchase by the Company of all of the Shares (the "Repurchased Shares") with
payment in full to be evidenced by cancellation of the Promissory Notes, to
avoid any dispute concerning the foregoing matters and to reach an amicable
resolution of the same.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Repurchase of Stock. The Seller hereby agrees to sell to the Company
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and the Company agrees to purchase from the Seller the Repurchased Shares. On
the Effective Date of this Agreement, the Company will cancel the Promissory
Notes and deliver them to the Seller against delivery to the Company by the
Seller of the stock certificate(s) representing the Repurchased Shares and an
executed Assignment Separate from Certificate in the form attached hereto as
Exhibit A, assigning the Repurchased Shares to the Company. As of the Effective
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Date, the Company shall be entitled to take all steps necessary to transfer the
Repurchased Shares to the Company, including without limitation cancellation of
the certificates representing the Repurchased Shares.
2. Representations by Seller. The Seller represents and warrants to the
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Company that Seller has the absolute and unrestricted right, power and authority
to sell, transfer and assign the Repurchased Shares to the Company pursuant to
this Agreement, free and clear of any liens, claims, pledges or other
encumbrances. No consent, approval or authorization of or notice to any third
party is necessary in connection with the sale, purchase or delivery of the
Repurchased Shares.
3. Release of Claims by Seller. In consideration for the repurchase of
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the Shares under this Agreement, the Seller agrees to the following:
(a) General Release. The Seller, on behalf of himself and his past
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and present heirs, executors, beneficiaries and assigns, hereby releases and
forever discharges the Company and its past and present officers, directors,
shareholders, employees, affiliates, agents, attorneys, accountants, and their
respective successors and assigns, from any and all claims, demands,
obligations, losses, causes of action, costs, expenses, attorneys' fees and
liabilities of any nature whatsoever, whether based on contract, tort, statutory
or other legal or equitable theory of recovery, including claims based on
federal and state securities laws, whether known or unknown, which the Seller
has, had or claims to have against either the Company, its past or present
officers, directors, employees, shareholders, affiliates, agents, accountants,
attorneys, subsidiaries, and their respective successors and assigns relating to
the Shares, the Promissory Notes and the Agreements.
(b) Waiver of California Civil Code (S) 1542. This Agreement is
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intended to cover all claims or possible claims described in Section 3(a),
whether the same are known, unknown or hereafter discovered or ascertained, and
the provisions of Section 1542 of the California Civil Code are hereby knowingly
and voluntarily expressly waived. Said Section provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
The Seller expressly acknowledges that he has been advised of the contents and
effect of such section, and with such knowledge hereby expressly waives whatever
benefits he may have had pursuant to said section.
(c) Agreement Not an Admission of Liability. The parties hereto agree
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and acknowledge that this Agreement is a compromise settlement and that the
release and covenants given in consideration of this Agreement shall not be
construed to be an admission of liability on the part of Seller or the Company
with respect to the matters set forth above.
4. Miscellaneous.
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(a) This Agreement may be amended only by written agreement between
the Company and the Seller.
(b) This Agreement shall be governed by and construed under the laws
of the State of California.
(c) This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter herein and supersedes all prior
discussions between them. Except to the extent modified by this Agreement, the
terms of the Executive Separation
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Agreement entered into in January 1998 by the Company and the Seller remains in
full force and effect.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
(e) This Agreement may be executed in counterparts, each of which
shall be deemed an original.
(f) Both parties agree to execute any additional documents necessary
to carry out the purposes of this Agreement.
(g) The parties agree that the Effective Date of this Agreement shall
be the date first set forth above, provided that as a condition to such
effectiveness each of the items specified for delivery in Section 1 shall have
been so delivered.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
VERTEL CORPORATION
By:______________________________ ____________________________
Xxxxx Xxxxx, President and CEO M.Y. Xxxxxxx
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EXHIBIT A
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto Vertel Corporation 1,025,000 shares of the Common Stock of Vertel
Corporation standing in his name on the books of such corporation, represented
by Certificate(s) No. _____________ herewith, and does hereby irrevocably
constitute and appoint ChaseMellon Shareholder Services, the Company's transfer
agent, to transfer such stock on the books of such corporation with full power
of substitution in the premises.
Dated: November 27, 1998
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M.Y. Xxxxxxx
This Assignment Separate from Certificate was executed in conjunction with
the terms of a Stock Repurchase Agreement by and between the above assignor and
Vertel Corporation dated November 27, 1998.
