STOCK PURCHASE AGREEMENT
This Agreement is made as of the 17th day of May 1999, by and among
Digital Xxxxxxxxxxx.xxx Inc., a Delaware corporation (the "Corporation"), and
Xxxxxxx X. Xxxxxxxx, a natural person residing in the State of Texas (the
"Purchaser").
ARTICLE I.
PURCHASE OF SHARES
SECTION 1.1 PURCHASE. The Purchaser hereby purchases, and the
Corporation hereby sells to the Purchaser, 750 shares of Common Stock, $.01 par
value, of the Corporation (the "Purchased Shares") at a purchase price of $.10
per share (the "Purchase Price"). The Corporation and the Purchaser agree that
the fair market value of the Purchased Shares as of the date of this Agreement
is $.10 per share of Common Stock.
SECTION 1.2 PAYMENT. Concurrently with the execution of this Agreement,
the Purchaser shall pay the Purchase Price for the Purchased Shares by check.
SECTION 1.3 DELIVERY OF CERTIFICATES. Concurrently with the execution
of this Agreement, the Corporation shall issue and deliver certificates
evidencing the Purchased Shares to the Purchaser. The Purchased Shares are
subject to the Corporation's Repurchase Right under Article IV hereof and the
certificates evidencing the Purchased Shares subject to the Repurchase Right
shall be held in escrow by the Secretary of the Corporation as provided in
Article V hereof. Purchaser shall also deliver to the Secretary of the
Corporation a duly executed blank Assignment Separate from Certificate (in the
form attached hereto as EXHIBIT "A") with respect to such Purchased Shares.
SECTION 1.4 EXECUTION OF AGREEMENT AMONG STOCKHOLDERS. Concurrently
with the execution of this Agreement, the Purchaser and his spouse will execute
and deliver that certain execution page for Shareholders' Agreement (IN THE FORM
ATTACHED HERETO AS EXHIBIT "B") pursuant to which the Purchaser will be bound by
the terms of that certain Shareholders' Agreement dated January 29, 1999 by and
among the Corporation and certain prior signatories thereto.
ARTICLE II.
TRANSFER RESTRICTIONS
SECTION 2.1 EXEMPTION FROM REGISTRATION. The Purchased Shares have not
been registered under the Securities Act of 1933, as amended (the "1933 Act"),
and are being issued to Purchaser in reliance upon the exemption from such
registration provided by Rule 701 of the Securities and Exchange Commission for
stock issuances under compensatory benefit arrangements such as this Agreement.
Purchaser hereby acknowledges receipt of a copy of this Agreement.
SECTION 2.2 RESTRICTED SECURITIES. Purchaser hereby confirms that
Purchaser has been informed that the Purchased Shares are restricted securities
under the 1933 Act and may not be sold or transferred unless the Purchased
Shares are first registered under the federal securities laws or unless an
exemption from such registration is available. Accordingly, Purchaser hereby
acknowledges that Purchaser is prepared to hold the Purchased Shares for an
indefinite period and that Purchaser is aware that Rule 144 of the Securities
and Exchange Commission issued under the 1933 Act is not presently available to
exempt the sale of the Purchased Shares from the registration requirements of
the 1933 Act. Purchaser is aware that Rule 144 permits limited public resales of
securities acquired in a nonpublic offering, subject to the satisfaction of
certain conditions. Purchaser understands that under Rule 144, the conditions
include, among other things: the availability of certain current public
information about the issuer, the resale occurring not less than one year after
the party has purchased and paid for the securities to be sold, the sale being
through a broker in an unsolicited "broker's transaction" and the amount of
securities being sold during any three-month period not exceeding specified
limitations. Purchaser acknowledges and understands that the Corporation may not
be satisfying the current public information requirement of Rule 144 at the time
Purchaser wishes to sell the Purchased Shares or other conditions under Rule 144
which are required of the Corporation. If so, Purchaser understands that
Purchaser will be precluded from selling the securities under Rule 144 even if
the one-year holding period of said Rule has been satisfied. Prior to
Purchaser's acquisition of the Purchased Shares, Purchaser acquired sufficient
information about the Corporation to reach an informed knowledgeable decision to
acquire the Purchased Shares. Purchaser has such knowledge and experience in
financial and business matters as to make Purchaser capable of utilizing said
information to evaluate the risks of the prospective investment and to make an
informed investment decision. Purchaser is able to bear the economic risk of
Purchaser's investment in the Purchased Stock.
SECTION 2.3 RESTRICTIONS ON TRANSFER.
(a) Purchaser shall not transfer, assign, encumber, or
otherwise dispose of any of the Purchased Shares that are subject to the
Corporation's Repurchase Right under Article IV.
(b) Purchaser hereby agrees that Purchaser shall make no
disposition of the Purchased Shares unless and until:
(i) Purchaser shall have complied with all
requirements of this Agreement applicable to the disposition
of the Purchased Shares;
(ii) Purchaser shall have complied with all
requirements of that certain Agreement Among Stockholders of
even date herewith by and among the Corporation and the
stockholders of the Corporation party thereto (the "Agreement
Among Stockholders") applicable to the disposition of the
Purchased Shares and shall have provided to the Corporation
evidence of such compliance which is reasonably satisfactory
to the Corporation;
The Corporation shall NOT be required (i) to transfer on its
books any Purchased Shares that have been sold or transferred in violation of
the provisions of this Article II OR (ii) to treat as the owner of the Purchased
Shares, or otherwise to accord voting or dividend rights to, any transferee to
whom the Purchased Shares have been transferred in contravention of this
Agreement.
SECTION 2.4 RESTRICTIVE LEGENDS. In order to reflect the restrictions
on disposition of the Purchased Shares, the stock certificates for the Purchased
Shares will be endorsed with restrictive legends, including one or both of the
following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SHARES UNDER SUCH ACT, (ii) A `NO ACTION' LETTER OF THE SECURITIES AND
EXCHANGE COMMISSION WITH RESPECT TO SUCH SALE OR OFFER, OR (iii) AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT REGISTRATION UNDER SUCH ACT IS NOT
REQUIRED WITH RESPECT TO SUCH SALE OR OFFER."
(b) 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 III.
SPECIAL PROVISIONS
SECTION 3.1 STOCKHOLDER RIGHTS. Until such time as the Corporation
actually exercises its repurchase rights under this Agreement, Purchaser (or any
successor in interest) shall have all the rights of a stockholder (including
voting and dividend rights) with respect to the Purchased Shares, including the
Purchased Shares held in escrow under Article V, subject, however, to the
transfer restrictions of Article II.
SECTION 3.2 SECTION 83(b) ELECTION. Purchaser understands that under
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), the
difference between the Purchase Price paid for the Purchased Shares and their
fair market value on the date any forfeiture restrictions applicable to such
shares lapse will be reportable as ordinary income at that time. For this
purpose, the term "forfeiture restrictions" includes the right of the
Corporation to repurchase the Purchased Shares pursuant to its Repurchase Right
under Article IV of this Agreement. Purchaser understands that Purchaser may
elect to be taxed at the time the Purchased Shares are acquired hereunder to the
extent the fair market value of the Purchased Shares differs from the Purchase
Price rather than when and as such Purchased Shares cease to be subject to such
forfeiture restrictions, by filing an election under Section 83(b) of the Code
with the I.R.S. within thirty (30) days after the date of purchase hereunder.
Purchaser understands that failure to make this filing within the thirty (30)
day period will result in the
recognition of ordinary income by the Purchaser (in the event the fair market
value of the Purchased Shares increases after the date of purchase) as the
forfeiture restrictions lapse. PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S
SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A TIMELY ELECTION
UNDER SECTION 83(b), EVEN IF PURCHASER REQUESTS THE CORPORATION OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON PURCHASER'S BEHALF. PURCHASER IS
RELYING SOLELY ON PURCHASER'S ADVISORS WITH RESPECT TO THE DECISION AS TO
WHETHER OR NOT TO FILE AN 83(b) ELECTION.
ARTICLE IV.
REPURCHASE RIGHT
SECTION 4.1 GRANT. The Corporation is hereby granted the right (the
"Repurchase Right"), exercisable at any time during the sixty (60) day period
following the date the Purchaser ceases for any reason to be employed by the
Corporation or any of its direct or indirect subsidiaries (the "Repurchase
Event") (or such longer period of time mutually agreed to by the parties), to
repurchase at a price of $.10 per share (the "Repurchase Price") all or, at the
discretion of the Corporation, any portion of the Purchased Shares in which the
Purchaser has not acquired a vested interest in accordance with the vesting
provisions of Section 4.3 (such shares to be hereinafter called the "Unvested
Shares").
SECTION 4.2 EXERCISE OF THE REPURCHASE RIGHT. The Repurchase Right
shall be exercisable by written notice delivered to the holder of the Unvested
Shares prior to the expiration of the applicable period specified in Section
4.1. The notice shall indicate the number of Unvested Shares to be repurchased
and the date on which the repurchase is to be effected, such date to be not more
than thirty (30) days after the date of notice. To the extent one or more
certificates representing Unvested Shares may have been previously delivered out
of escrow to the holder, then the holder shall, prior to the close of business
on the date specified for the repurchase, deliver to the Secretary of the
Corporation the certificates representing the Unvested Shares to be repurchased,
each certificate to be properly endorsed for transfer. The Corporation shall,
concurrently with the receipt of such stock certificates (either from escrow in
accordance with Section 5.3 or from the holder as herein provided), pay to the
holder in cash an amount equal to the Repurchase Price for the Unvested Shares
that are to be repurchased.
SECTION 4.3 TERMINATION OF THE REPURCHASE RIGHT. The Repurchase Right
shall terminate with respect to any Unvested Shares for which it is not timely
exercised under Section 4.2. In addition, the Repurchase Right shall terminate,
and cease to be exercisable, with respect to any and all Purchased Shares in
which the Purchaser vests in accordance with the schedule below. Accordingly,
provided the Repurchase Event has not occurred, the Purchaser shall acquire a
vested interest in, and the Repurchase Right shall lapse with respect to, the
Purchased Shares in accordance with the following provisions:
(a) Commencing on that date following the expiration of the
initial twelve (12) month period measured from the date of this Agreement (the
"Initial Vesting Date"), the
Purchaser shall acquire a vested interest in, and the Repurchase Right shall
lapse with respect to, the Purchased Shares in a series of three annual
installments each equal to thirty-three and one-third percent (33.33%) of the
Purchased Shares. Such installments shall vest upon each twelve (12) month
anniversary date, measured from the date of this Agreement, so long as the
Repurchase Event has not occurred on or prior to such anniversary date, and
there shall be no partial or pro rata vesting with respect to any portion of
a twelve (12) month period in which the Repurchase Event has occurred.
SECTION 4.4 FRACTIONAL SHARES. No fractional shares shall be
repurchased by the Corporation. Accordingly, should the Repurchase Right extend
to a fractional share (in accordance with the vesting computation provisions of
Section 4.3) at the time the Repurchase Event occurs, then such fractional share
shall be added to any fractional share in which the Purchaser is at such time
vested in order to make one whole vested share no longer subject to the
Repurchase Right.
SECTION 4.5 ADDITIONAL SHARES OR SUBSTITUTED SECURITIES. In the event
of any stock dividend, stock split, recapitalization or other change affecting
the Corporation's outstanding Common Stock as a class effected without receipt
of consideration, then any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend) which is
by reason of any such transaction distributed with respect to the Purchased
Shares shall be immediately subject to the Repurchase Right, but only to the
extent of the Purchased Shares that are at the time covered by such right.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the number of Purchased Shares hereunder and to the
price per share to be paid upon the exercise of the Repurchase Right in order to
reflect the effect of any such transaction upon the Corporation's capital
structure; provided, however, that the aggregate Repurchase Price shall remain
the same.
SECTION 4.6 CORPORATE TRANSACTION. In the event of any of the following
transactions (a "Corporate Transaction"):
(i) a merger or acquisition in which the Corporation
is not the surviving entity, except for a transaction the
principal purpose of which is to change the State in which the
Corporation is incorporated;
(ii) a change in control (as defined in the
Corporation's 1999 Stock Compensation Plan) shall have
occurred; or
(iii) any dissolution, winding up or liquidation of
the Corporation, whether voluntary or involuntary,
then the Repurchase Right shall automatically lapse in its entirety, and the
Purchaser shall acquire a vested interest in all the Purchased Shares, upon the
consummation of such Corporate Transaction.
SECTION 4.7 LEGEND. In addition to the legends required by Section 2.4,
all certificates representing Purchased Shares subject to the Corporation's
Repurchase Right shall be endorsed with the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED
OF, EXCEPT IN COMPLIANCE WITH THE TERMS OF THAT CERTAIN STOCK
PURCHASE AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED
HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE
SHARES). SUCH AGREEMENT GRANTS CERTAIN REPURCHASE RIGHTS TO
THE CORPORATION UPON TERMINATION OF SERVICE WITH THE
CORPORATION. THE SECRETARY OF THE CORPORATION WILL UPON
WRITTEN REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER
HEREOF WITHOUT CHARGE."
ARTICLE V.
ESCROW
SECTION 5.1 DEPOSIT. Upon issuance, certificates for the Unvested
Shares shall be deposited in escrow with the Secretary of the Corporation to be
held in accordance with the provisions of this Article V. Each deposited
certificate shall be accompanied by a duly executed Assignment Separate from
Certificate in the form of EXHIBIT A. The deposited certificates, together with
any other assets or securities from time to time deposited with the Corporation
pursuant to the requirements of this Agreement, shall remain in escrow until
such time or times as the certificates (or other assets and securities) are to
be released or otherwise surrendered for cancellation in accordance with Section
5.3. Upon delivery of the certificates (or other assets and securities) to the
Corporation, the holder shall be issued an instrument of deposit acknowledging
the number of Unvested Shares (or other assets and securities) delivered in
escrow to the Secretary of the Corporation.
SECTION 5.2 RECAPITALIZATION. All regular cash dividends on the
Unvested Shares (or other securities at the time held in escrow) shall be paid
directly to the holder and shall not be held in escrow. However, in the event of
any stock dividend, stock split, recapitalization or other change affecting the
Corporation's outstanding Common Stock as a class effected without receipt of
consideration or in the event of a Corporate Transaction, any new, substituted
or additional securities or other property which is by reason of such
transaction distributed with respect to the Unvested Shares shall be immediately
delivered to the Secretary of the Corporation to be held in escrow under this
Article V, but only to the extent the Unvested Shares are at the time subject to
the escrow requirements of Section 5.1.
SECTION 5.3 RELEASE SURRENDER. The Unvested Shares, together with any
other assets or securities held in escrow hereunder, shall be subject to the
following terms and conditions relating to their release from escrow or their
surrender to the Corporation for repurchase and cancellation:
(a) Should the Corporation elect to exercise the Repurchase
Right under Article IV with respect to any Unvested Shares, then the escrowed
certificates for such Unvested Shares (together with any other assets or
securities issued with respect thereto) shall be delivered to the Corporation
for cancellation, concurrently with the payment to the holder, in cash, an
amount equal to the aggregate Repurchase Price for such Unvested Shares, and the
holder shall cease to have any further rights or claims with respect to such
Unvested Shares (or other assets or securities).
(b) As the interest of the Purchaser in the Unvested Shares
(or any other assets or securities issued with respect thereto) vests in
accordance with the provisions of Article IV, the certificates for such vested
shares (as well as all other vested assets and securities) shall be released
from escrow and delivered to the holder as follows:
(i) the initial release of vested shares (as well as
all other vested assets and securities) from escrow shall be
effected within ten (10) days following the expiration of the
initial twelve (12) month period measured from the date of
this Agreement;
(ii) subsequent releases of vested shares (as well as
all other vested assets and securities) from escrow shall be
effected at annual intervals thereafter, with the first such
annual release to occur twenty-four (24) months after the date
of this Agreement; and
(iii) upon any earlier termination of the
Corporation's Repurchase Right in accordance with the
applicable provisions of Article IV, the Unvested Shares (as
well as all other assets or securities) at the time held in
escrow hereunder shall immediately be released to the holder
as fully vested shares or other property.
ARTICLE VI.
GENERAL PROVISIONS
SECTION 6.1 ASSIGNMENT. This Agreement may not be assigned by either
party hereto.
SECTION 6.2 NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this
Agreement shall confer upon the Purchaser any right to continue in the service
of the Corporation (or any parent or subsidiary corporation of the Corporation
employing or retaining Purchaser) for any period of time or interfere with or
restrict in any way the rights of the Corporation (or any parent or subsidiary
corporation of the Corporation employing or retaining Purchaser), which rights
are
hereby expressly reserved by each, to terminate the Purchaser as an employee
of the Corporation or any parent or subsidiary of the Corporation at any time
for any reason whatsoever, with or without cause.
SECTION 6.3 NOTICES. Any notice required under this Agreement shall be
given in writing and shall be deemed effective upon personal delivery or upon
receipt following deposit in the United States mail, registered or certified,
postage prepaid and addressed to the party entitled to such notice at the
address indicated below such party's signature line on this Agreement or at such
other address as such party may designate by ten (10) days' advance written
notice under this Section 6.3 to all other parties to this Agreement.
SECTION 6.4 NO WAIVER. The failure of the Corporation (or its
assignees) in any instance to exercise the Repurchase Rights granted under
Article IV, shall not constitute a waiver of any other repurchase rights that
may subsequently arise under the provisions of this Agreement or any other
agreement between the Corporation and the Purchaser. No waiver of any breach or
condition of this Agreement shall be deemed to be a waiver of any other or
subsequent breach or condition, whether of like or different nature.
SECTION 6.5 CANCELLATION OF SHARES. If the Corporation shall make
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and after such time,
the person from whom such shares are to be repurchased shall no longer have any
rights as a holder of such shares (other than the right to receive payment of
such consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Corporation shall be deemed the owner and holder of such shares, whether or not
the certificates therefor have been delivered as required by this Agreement.
ARTICLE VII.
AGREEMENT REGARDING COMMUNITY PROPERTY
The spouse of the Purchaser hereby agrees that all of the Purchased
Shares presently owned or hereafter acquired by the Purchaser are, if such
Purchased Shares are community property, community property subject to the sole
management, control and disposition of the Purchaser, and the Purchaser and the
spouse of the Purchaser agree that all Purchased Shares now owned or hereafter
acquired are subject to the sole management, control and disposition of the
Purchaser. All interest in such shares owned by the spouse of the Purchaser
shall for all purposes of this Agreement be included in, deemed part of and be
bound by the same terms hereof as the Purchased Shares of which the Purchaser is
the owner; and in any action taken, offer made or offer exercised hereunder with
reference to the Purchased Shares of the Purchaser, the terms of this Agreement
shall be applicable to any interest in such Purchased Shares owned by the spouse
of the Purchaser. The spouse of the Purchaser, or any person who becomes a
spouse of the Purchaser hereafter, shall agree in writing to be bound by this
Agreement. If joinder of a spouse of the Purchaser should be required by law in
connection with any document
required to be executed by the Purchaser hereunder with respect to the
Purchaser's sole management community property, upon request, such spouse
shall execute any instruments necessary to effectuate the purposes of such
required document.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
SECTION 8.1 PURCHASER UNDERTAKING. Purchaser hereby agrees to take
whatever additional action and execute whatever additional documents the
Corporation may in its judgment deem necessary or advisable in order to carry
out or effect one or more of the obligations or restrictions imposed on either
the Purchaser or the Purchased Shares pursuant to the express provisions of this
Agreement; provided, however, that the Corporation shall pay for any of the
executor's reasonable expenses incurred with regard to such additional actions,
including reasonable attorneys fees.
SECTION 8.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
SECTION 8.3 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas.
SECTION 8.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall inure to the benefit of, and be binding upon, the Corporation and its
successors and assigns and the Purchaser and the Purchaser's legal
representatives, heirs, legatees, distributees, assigns and transferees by
operation of law, whether or not any such person shall have become a party to
this Agreement and have agreed in writing to join herein and be bound by the
terms and conditions hereof.
SECTION 8.5 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES ON NEXT PAGE.)
IN WITNESS WHEREOF, the parties have executed this Executive Stock
Purchase Agreement on the day and year first indicated above.
DIGITAL XXXXXXXXXXX.XXX INC.
By: /s/ J. Xxxxx Xxxxxxx
-----------------------------------
J. Xxxxx Xxxxxxx
PURCHASER:
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/
--------------------------------------
__________________, Spouse of Purchaser
