Exhibit 10.28
2BRIDGE
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of, March 8, 2000, between 2Bridge, a
California corporation (the "Company") and Xxxxx Xxxxxxxxxxx (the "Purchaser").
WHEREAS the Purchaser is a director of the Company and the Purchaser's
participation is considered by the Company to be important for the Company's
growth; and
WHEREAS in order to give the Purchaser an opportunity to acquire an
equity interest in the Company as an incentive for the Purchaser to participate
in the affairs of the Company, the Company is willing to sell to the Purchaser
and the Purchaser desires to purchase shares of Common Stock of the Company
according to the terms and conditions contained herein.
THEREFORE, the parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the Purchaser and
-------------
the Purchaser hereby agrees to purchase an aggregate of 50,000 shares of the
Company's Common Stock (the "Shares"), at the price of $3.50 per share for an
aggregate purchase price of $175,000.
2. Closing. The purchase and sale of the Shares shall be made in one or
-------
more closings, the first of which will take place at 10:00 a.m. on March 8,
2000, at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxx, or such other place and/or other date or dates as the
Company and the Purchaser mutually agree (which time and place are designated
the "Closing"). At the Closing, the Company will deliver to the Purchaser a
certificate representing the Shares which the Purchaser is purchasing against
delivery to the Company by the Purchaser of the applicable purchase price set
forth in Section 1 herein.
3. Stop-Transfer Notices. (a) Purchaser agrees that, in order to ensure
---------------------
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(b) The Company shall not be required (i) to transfer on its books any
Shares that have been sold or otherwise transferred in violation of any of the
provisions of this Agreement or (ii) to treat as owner of such Shares or to
accord the right to vote or pay dividends to any purchaser or other transferee
to whom such Shares shall have been so transferred.
4. Purchaser Representations. In connection with the purchase of the
-------------------------
Shares, the Purchaser represents to the Company the following:
(a) Investment Intent; Capacity to Protect Interests.
------------------------------------------------
(i) The Purchaser is acquiring the Shares solely for his own
account for investment and not with a view to or for sale in connection with any
distribution of the Shares or any portion thereof and not with any present
intention of selling, offering to sell or otherwise disposing of or distributing
the Shares or any portion thereof in any transaction other than a transaction
exempt from registration under the Securities Act of 1933, as amended (the
"Act"). The Purchaser also represents that the entire legal and beneficial
interest of the Shares is being acquired by, and will be held for, the
Purchaser's account only, and neither in whole or in part for any other person.
(ii) The Purchaser either has a pre-existing business or
personal relationship with the Company or any of its officers, directors or
controlling persons or by reason of the Purchaser's business or financial
experience, or the business or financial experience of the Purchaser's
professional advisors who are unaffiliated with and who are not compensated by
the Company or any affiliate or selling agent of the Company, directly or
indirectly, could be reasonably assumed to have the capacity to evaluate the
merits and risks of an investment in the Company and to protect the Purchaser's
own interests in connection with this transaction.
(iii) The Purchaser represents that he is an "accredited
investor" under the Act and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the
Purchaser's prospective investment in the Company.
(b) Economic Risk. The Purchaser realizes that the acquisition of the
-------------
Shares will be a highly speculative investment and involves a high degree of
risk, and the Purchaser is able, without significantly impairing his financial
condition, to hold the Shares for an indefinite period of time and to suffer a
complete loss of the Purchaser's investment.
(c) Restricted Securities. The Purchaser understands and acknowledges
---------------------
that:
(i) the Shares have not been registered under the Act, and the
Shares must be held indefinitely unless subsequently registered under the Act or
an exemption from such registration is available (such as Rule 144);
(ii) the share certificate representing the Shares will be
stamped with the legends specified in paragraph 6 hereof; and
(iii) the Company will make a notation in its records of the
aforementioned restrictions on transfer and legends.
(d) Disposition under the Act. The Purchaser understands that the
-------------------------
Shares are restricted securities within the meaning of Rule 144 promulgated
under the Act; that the exemption from registration under Rule 144 will not be
available in any event for at least one year after the later of the date the
Shares were sold by the Company or the date the Shares were sold by an affiliate
of the Company, within the meaning of Rule 144, and even then will not be
available unless adequate information concerning the Company is then available
to the public and other terms and conditions
-2-
of Rule 144 are complied with; and that any sale of the Shares may be made only
in limited amounts in accordance with such terms and conditions. There can be no
assurance that the requirements of Rule 144 will be met, or that the Shares will
ever be saleable.
(e) Further Limitations on Disposition. Without in any way limiting
----------------------------------
his representations set forth above, the Purchaser further agrees that the
Purchaser shall in no event make any disposition of all or any portion of the
Shares unless and until (i) there is then in effect a Registration Statement
under the Act covering such proposed disposition and such disposition is made in
accordance with said Registration Statement, (ii) the resale provisions of Rule
144(k) are available in the opinion of counsel to the Company or (iii) (A) the
Purchaser shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, (B) the Purchaser shall have furnished the
Company with an opinion of the Purchaser's counsel to the effect that such
disposition will not require registration of such stock under the Act and (C)
such opinion of the Purchaser's counsel shall have been concurred in by counsel
for the Company, and the Company shall have advised the Purchaser of such
concurrence.
5. Company Representations. In connection with its sale of the Shares,
-----------------------
the Company hereby represents and warrants to the Purchaser the following:
(a) Corporate Organization and Authority. The Company: (i) is a
------------------------------------
corporation duly organized, validly existing, authorized to exercise all its
corporate powers, rights and privileges, and in good standing in the State of
California, and (ii) has the corporate power and authority to (A) own and
operate its properties, (B) carry on its business as now conducted and as
proposed to be conducted, (C) execute and deliver this Agreement, (D) issue and
sell the Shares hereunder, (E) carry out the provisions of this Agreement.
(b) Authorization. All action on the part of the Company, its
-------------
officers, directors and shareholders necessary for the authorization, execution,
delivery and performance of all obligations under this Agreement and for the
authorization, sale, issuance and delivery of the Shares has been taken. When
executed and delivered, this Agreement will constitute a legally valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except to the extent that such enforcement may be subject to
applicable federal or state bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent conveyance or other laws or court decisions relating to
or affecting the rights of creditors generally, and such enforcement may be
limited by equitable principles of general applicability.
(c) Validity of Shares. The Shares are duly authorized and, when
------------------
issued, sold and delivered in accordance with the terms of and for the
consideration expressed in this Agreement, will be duly and validly issued
(including, without limitation, issued in compliance with applicable federal and
state securities laws), fully-paid and non-assessable and will be free and clear
of all preemptive rights, rights of first refusal, liens, charges, restrictions,
claims and encumbrances
-3-
imposed by or through the Company, except as specifically set forth in the
Articles of Incorporation of the Company (the "Articles") or in this Agreement.
(d) No Conflict with other Instruments. The execution, delivery and
----------------------------------
performance of this Agreement will not result in any event that results in the
creation of any lien, charge or encumbrance upon any assets of the Company or
the suspension, revocation, impairment, forfeiture or nonrenewal of any material
permit, license, authorization or approval applicable to the Company, its
business or operation of any of its assets or properties or result in any
violation of, be in conflict with, or constitute a default under: (i) any
provision of the Articles or the Company's Bylaws; (ii) any provision of any
judgment, decree or order to which the Company is a party or by which it is
found; (iii) any mortgage, indenture, license, contract, obligation or
commitment to which the Company is a party or by which it is bound; or (iv) any
statute, rule or governmental regulation applicable to the Company.
(e) Private Offering The Company agrees that neither the Company nor
----------------
anyone acting on its behalf will offer any of the Shares or any similar
securities for issuance or sale to, or solicit any offer to acquire any of the
same from, anyone in such a way as to make the issuance and sale of the Shares
subject to the registration requirements of Section 5 of the Securities Act of
1933, as amended (the "Securities Act").
(f) Governmental Consents. No consent, approval, order or
---------------------
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the Company's valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Shares or the
consummation of any other transaction contemplated hereby, except for the filing
of a Form D notice under Regulation D of the Securities Act, and any other post-
sale filings required by applicable state securities laws. The offer, sale and
issuance of the Shares in conformity with the terms of this Agreement are exempt
from the registration requirements of Section 5 of the Securities Act and from
the qualification requirements of applicable state securities laws, assuming the
accuracy of the representations and warranties of the Purchaser as set forth in
Section 4 of this Agreement.
6. Conditions of Purchaser's Obligations at Closing. The obligations of
------------------------------------------------
the Purchaser under Sections 1 and 2 of this Agreement are subject to the
fulfillment at or before the Closing of each of the following conditions, any of
which may be waived in writing by the Purchaser:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 5 of this Agreement will be true,
correct and complete on and as of the Closing with the same effect as if made on
and as of such Closing.
(b) Performance. The Company will have performed or fulfilled all
-----------
agreements, obligations and conditions contained herein required to be performed
or fulfilled by the Company at or before the Closing.
-4-
(c) Blue Sky Compliance. The Company will have complied with and be
-------------------
effective under all state securities or Blue Sky laws applicable to the offer
and sale of the Shares to the Purchaser.
(d) Proceedings Satisfactory: Compliance Certificate. All corporate
------------------------
and legal proceedings taken by the Company in connection with the transactions
contemplated by this Agreement and all documents and papers relating to such
transactions will be satisfactory to the Purchaser, in the reasonable exercise
of the judgment of the Purchaser.
(e) Consents, Permits, and Waivers. The Company shall have obtained
------------------------------
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement (except for such
as may be properly obtained subsequent to the Closing).
7. Conditions of the Company's Obligations at Closing. The obligations
--------------------------------------------------
of the Company under Sections 1 and 2 of this Agreement are subject to the
fulfillment at or before the Closing of each of the following conditions, any of
which may be waived in writing by the Company:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Purchaser contained in Section 4 will be true on and as of the
Closing with the same effect as though said representations and warranties had
been made on and as of the Closing.
(b) Performance. The Purchaser will have performed or fulfilled all
-----------
agreements, obligations and conditions contained herein required to be performed
or fulfilled by the Purchaser at or before the Closing, including without
limitation delivery to the Company of the purchase price for the Shares as set
forth in Section 2 above.
(c) Blue Sky Compliance. The Company will have complied with and be
-------------------
effective under the securities laws of the State of California and any other
applicable state as necessary to offer and sell the Shares to the Purchaser.
8. Stock Certificate Legends. The share certificate evidencing the
-------------------------
Shares issued hereunder shall be endorsed with the following legends:
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE RESTRICTED STOCK
-5-
PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS
ON FILE WITH THE SECRETARY OF THE COMPANY. SUCH TRANSFER RESTRICTIONS AND RIGHT
OF REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.
(c) Any legend required by any applicable state securities laws.
9. Market Stand-Off Agreement. The Purchaser hereby agrees, if so
--------------------------
requested by the managing underwriters in such offering, that, without the prior
written consent of such managing underwriters, the Purchaser will not offer,
sell, contract to sell, grant any option to purchase, make any short sale or
otherwise dispose of or make a distribution of any capital stock of the Company
held by or on behalf of the Purchaser or beneficially owned by the Purchaser in
accordance with the rules and regulations of the Securities and Exchange
Commission for a period of up to 180 days after the effective date of the
registration statement relating to the Company's initial public offering.
10. Adjustment for Stock Split. All references to the number of Shares and
---------------------------
the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
11. Tax Consequences. The Purchaser has reviewed with the Purchaser's own
----------------
tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. The Purchaser
is relying solely on such advisors and not on any statements or representations
of the Company or any of its agents. The Purchaser understands that the
Purchaser (and not the Company) shall be responsible for the Purchaser's own tax
liability that may arise as a result of this investment or the transactions
contemplated by this Agreement.
12. Registration Rights. To the extent permitted by Section 1.12 under
-------------------
the Rights Agreement (as defined below), the parties agree, after the Closing,
to execute an Investors' Rights Agreement in the form of Exhibit A attached
hereto.
13. General Provisions.
------------------
(a) This Agreement shall be governed by the laws of the State of
California as they apply to contracts entered into and wholly to be performed in
such state. This Agreement represents the entire agreement between the parties
with respect to the purchase of Common Stock by the Purchaser and may only be
modified or amended in writing signed by both parties.
(b) Any dispute, claim or controversy of any kind (including but not
limited to tort, contract and statute) arising under, in connection with, or
relating to this Agreement shall at the request of either party be resolved
exclusively by binding arbitration in, San Francisco, California in accordance
with the Commercial rules of the American Arbitration Association then in
effect. The Purchaser and the Company agree to waive any objection to personal
jurisdiction or venue in any
-6-
forum located in, San Francisco, California. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
(c) Any notice, demand or request required or permitted to be given
by either the Company or the Purchaser pursuant to the terms of this Agreement
shall be in writing and shall be deemed given when delivered personally or
deposited in the U.S. mail, First Class with postage prepaid, and addressed to
the parties at the addresses of the parties set forth at the end of this
Agreement or such other address as a party may request by notifying the other in
writing.
(d) The rights and benefits of the Company under this Agreement shall
be transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by the
Company's successors and assigns. The rights and obligations of the Purchaser
under this Agreement may only be assigned with the prior written consent of the
Company.
(e) Either party's failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of either party's right
to assert all other legal remedies available to it under the circumstances.
(f) Each of the parties hereto agree upon request to execute any
further documents or instruments necessary or desirable to carry out the
purposes or intent of this Agreement.
(g) Purchaser has reviewed this Agreement in its entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of this Agreement.
-7-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first set forth above.
2BRIDGE, PURCHASER:
a California corporation
By: __________________________ _________________________________
Name: Xxxxx Xxxxxxxxxxx
Title:
_________________________________
(Address)
_________________________________
_________________________________
