Exhibit 4.11
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of July 31,
1998, between AppNet Systems, Inc., a Delaware corporation (the "CORPORATION")
and Xxxxxxx Xxxxxx (the "EMPLOYEE").
The Company and Employee desire to enter into an agreement pursuant to
which Employee will purchase, and the Company will sell, 30,000 shares of the
Company's Common Stock, par value $.0005 per share (the "EMPLOYEE STOCK").
Certain definitions are set forth in Section 8 of this Agreement.
The execution and delivery of this Agreement by the Company and
Employee is related to the purchase of shares of Common Stock and shares of the
Company's Class A Preferred Stock, par value $.01 per share (the "CLASS A
PREFERRED") by Smart Technology, L.L.C. ("SMART TECHNOLOGY"), GTCR Xxxxxx
Xxxxxx, L.L.C., a Delaware limited liability company ("GTCR" and, together with
Smart Technology, the "INVESTORS" and each an "INVESTOR") pursuant to a purchase
agreement between the Company and the Investors dated as of June 29, 1998 (the
"PURCHASE AGREEMENT"). Certain provisions of this Agreement are intended for the
benefit of, and will be enforceable by, the Investors.
The parties hereto agree as follows:
PROVISIONS RELATING TO EMPLOYEE STOCK
1. RESERVED.
2. PURCHASE AND SALE OF EMPLOYEE STOCK.
(a) Upon execution of this Agreement, Employee will purchase,
and the Company will sell, 30,000 shares of Common Stock at a price of $0.1055
per share. The Company will deliver to Employee the certificates representing
such Employee Stock, and Employee will deliver to the Company a check or wire
transfer of funds in the aggregate amount of $15.00 and a promissory note in the
form of ANNEX A attached hereto in an aggregate principal amount of $3,150 (the
"EMPLOYEE NOTE"). Employee's obligations under the Employee Note shall be
secured by a pledge of all of the shares of Common Stock purchased hereunder to
the Company and in connection therewith, Employee shall enter into a pledge
agreement in the form of ANNEX B attached hereto.
(b) Within 30 days after the date hereof, Employee will make
an effective election with the Internal Revenue Service under Section 83(b) of
the Internal Revenue Code and the regulations promulgated thereunder in the form
of ANNEX C attached hereto.
(c) In connection with the purchase and sale of the Employee
Stock hereunder, Employee represents and warrants to the Company that:
(i) The Employee Stock to be acquired by Employee pursuant
to this Agreement will be acquired for Employee's own account and not with a
view to, or intention of, distribution thereof in violation of the Securities
Act, or any applicable state securities laws, and the Employee Stock will not be
disposed of in contravention of the Securities Act or any applicable state
securities laws.
(ii) Employee is an Employee of the Company, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Employee Stock.
(iii) Employee is able to bear the economic risk of her
investment in the Employee Stock for an indefinite period of time because the
Employee Stock has not been registered under the Securities Act and, therefore,
cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available.
(iv) Employee has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of Employee
Stock and has had full access to such other information concerning the Company
as she has requested.
(v) This Agreement constitutes the legal, valid and
binding obligation of Employee, enforceable in accordance with its terms, and
the execution, delivery and performance of this Agreement by Employee does not
and will not conflict with, violate or cause a breach of any agreement, contract
or instrument to which Employee is a party or any judgment, order or decree to
which Employee is subject.
(vi) Employee is a resident of the State of Maryland.
(d) As an inducement to the Company to issue the Employee
Stock to Employee, as a condition thereto, Employee acknowledges and agrees that
neither the issuance of the Employee Stock to Employee nor any provision
contained herein shall entitle Employee to remain in the employment of the
Company and its Subsidiaries or affect the right of the Company to terminate
Employee's employment at any time for any reason.
3. REPURCHASE OPTION.
(a) In the event that Employee ceases to be employed by the
Company and its Subsidiaries for any reason (the "SEPARATION"), the Employee
Stock (whether held by Employee or one or more of Employee's transferees, other
than the Company) will be subject to repurchase, in each case at the option of
the Company, the Investors and Xxx X. Xxxxx ("Bajaj") pursuant to the terms and
conditions set forth in this Section 3(a) (the "REPURCHASE OPTION"). A
percentage of the Employee Stock will be subject to repurchase at the Employee's
Original Cost for such shares, calculated in accordance with the following
schedule (the "ORIGINAL COST SHARES"):
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DATE PERCENTAGE OF EMPLOYEE STOCK
TO BE REPURCHASED AT ORIGINAL COST
----------------------------------
Date of this Agreement until 1st Anniversary of this Agreement 100%
Date immediately following 1st Anniversary of this Agreement until 75%
2nd Anniversary of this Agreement
Date immediately following 2nd Anniversary of this Agreement until 50%
3rd Anniversary of this Agreement
Date immediately following 3rd Anniversary of this Agreement until 25%
4th Anniversary of this Agreement
Date immediately following 4th Anniversary of this Agreement and 0%
thereafter
The purchase price for the remaining shares of Employee Stock shall be the Fair
Market Value of such shares (the "FAIR MARKET VALUE SHARES").
(b) The Company may elect to purchase all or any portion of
the Original Cost Shares and the Fair Market Value Shares by delivering written
notice (the "REPURCHASE NOTICE") to the holder or holders of the Employee Stock
within 180 days after the Separation. The Repurchase Notice will set forth the
number of Original Cost Shares and Fair Market Value Shares to be acquired from
each holder, the aggregate consideration to be paid for such shares and the time
and place for the closing of the transaction. The number of shares to be
repurchased by the Company shall first be satisfied to the extent possible from
the shares of Employee Stock held by Employee at the time of delivery of the
Repurchase Notice. If the number of shares of Employee Stock then held by
Employee is less than the total number of shares of Employee Stock which the
Company has elected to purchase, the Company shall purchase the remaining shares
elected to be purchased from the other holder(s) of Employee Stock under this
Agreement, pro rata according to the number of shares of Employee Stock held by
such other holder(s) at the time of delivery of such Repurchase Notice
(determined as nearly as practicable to the nearest share). The number of
Original Cost Shares and Fair Market Value Shares to be repurchased hereunder
will be allocated among Employee and the other holders of Employee Stock (if
any) pro rata according to the number of shares of Employee Stock to be
purchased from such person.
(c) If for any reason the Company does not elect to purchase
all of the Employee Stock pursuant to the Repurchase Option, the Investors and
Bajaj shall be entitled to
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exercise the Repurchase Option for all or any portion of the shares of Employee
Stock that the Company has not elected to purchase (the "AVAILABLE SHARES"). As
soon as practicable after the Company has determined that there will be
Available Shares, but in any event within 150 days after the Separation, the
Company shall give written notice (the "OPTION NOTICE") to the Investors and
Bajaj setting forth the number of Available Shares and the purchase price for
the Available Shares. The Investors and Bajaj may elect to purchase any or all
of the Available Shares by giving written notice to the Company within one month
after the Option Notice has been given by the Company. If the Investors and
Bajaj elect to purchase an aggregate number of shares greater than the number of
Available Shares, the Available Shares shall be allocated among the Investors
and Bajaj based upon the number of shares of Common Stock owned by each Investor
and Bajaj on a fully diluted basis (excluding, in the case of Bajaj, shares
owned by him that are subject to repurchase at cost). As soon as practicable,
and in any event within ten days, after the expiration of the one-month period
set forth above, the Company shall notify each holder of Employee Stock as to
the number of shares being purchased from such holder by the Investors and Bajaj
(the "SUPPLEMENTAL REPURCHASE NOTICE"). At the time the Company delivers the
Supplemental Repurchase Notice to the holder(s) of Employee Stock, the Company
shall also deliver written notice to the Investors and Bajaj setting forth the
number of shares the Investors and Bajaj are entitled to purchase, the aggregate
purchase price and the time and place of the closing of the transaction. The
number of Original Cost Shares and Fair Market Value Shares to be repurchased
hereunder shall be allocated among the Company, the Investors and Bajaj pro rata
according to the number of shares of Employee Stock to be purchased by each of
them. Notwithstanding the foregoing, the Investors and Bajaj shall not exercise
their Repurchase Option as to the Original Cost Shares pursuant to this Section
3(c) if the Company has sufficient assets to fully exercise its Repurchase
Option as to the Original Cost Shares but has not exercised such right.
Furthermore, if the Investors and Bajaj repurchase any Original Cost Shares,
they shall contribute such Original Cost Shares to the Company in exchange for a
promissory note from the Company with an aggregate principal amount equal to the
purchase price paid for such shares, bearing interest (payable quarterly) at a
rate per annum equal to the prime rate as published in the WALL STREET JOURNAL
from time to time, and having a term of no longer than five years.
(d) The closing of the purchase of the Employee Stock pursuant
to the Repurchase Option shall take place on the date designated by the Company
in the Repurchase Notice or Supplemental Repurchase Notice, which date shall not
be more than one month nor less than five days after the delivery of the later
of either such notice to be delivered. The Company will pay for the Employee
Stock to be purchased by it pursuant to the Repurchase Option by first
offsetting amounts outstanding under any bona fide debts owed by Employee to the
Company and will pay the remainder of the purchase price by, at its option, (A)
a check or wire transfer of funds, or (B) a check or wire transfer of funds for
at least one-third of the purchase price, and a subordinated note or notes
payable in two equal annual installments beginning on each of the first and
second anniversary of the closing of such purchase and bearing interest (payable
quarterly) at a rate per annum equal to the prime rate as published in THE WALL
STREET JOURNAL from time to time in the aggregate amount of the remainder of the
purchase price for such shares. The Investors and Bajaj will pay for the
Employee Stock purchased by it by a check or wire transfer of funds. The
Company, the Investors and Bajaj will be entitled to receive
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customary representations and warranties from the sellers regarding such sale
and to require that all sellers' signatures be guaranteed.
(e) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Employee Stock by the Company shall be subject to
applicable restrictions contained in the Delaware General Corporation Law and in
the Company's and its Subsidiaries' debt and equity financing agreements. If any
such restrictions prohibit the repurchase of Employee Stock hereunder which the
Company is otherwise entitled or required to make, the Company may make such
repurchases as soon as it is permitted to do so under such restrictions.
(f) Notwithstanding anything to the contrary contained in this
Agreement, if the Employee delivers the notice of objection described in the
definition of Fair Market Value, or if the Fair Market Value of a Fair Market
Value Share is otherwise determined to be an amount more than 10% greater than
the per share repurchase price for Fair Market Value Shares originally
determined by the Board, each of the Company, the Investors and Bajaj shall have
the right to revoke its or their exercise of the Repurchase Option for all or
any portion of the Employee Stock elected to be repurchased by it by delivering
notice of such revocation in writing to the holders of the Employee Stock during
(i) the thirty-day period beginning on the date the Company, the Investors and
Bajaj receive Employee's written notice of objection and (ii) the thirty-day
period beginning on the date the Company, the Investors and Bajaj are given
written notice that the Fair Market Value of a Fair Market Value Share was
finally determined to be an amount more than 10% greater than the per share
repurchase price for Fair Market Value Shares originally determined by the Board
(g) The provisions of this Section 3 shall terminate upon the
consummation of a Sale of the Company.
4. RESTRICTIONS ON TRANSFER OF EMPLOYEE STOCK.
(a) RETENTION OF EMPLOYEE STOCK. Until the fifth anniversary
of the date of this Agreement, Employee shall not sell, transfer, assign, pledge
or otherwise dispose of any interest in any shares of Employee Stock, except
pursuant to: (i) a Sale of the Company, (ii) Section 3 of this Agreement, (iii)
Section 4 of the Stockholders Agreement, (iv) a sale described in clause (i) of
the definition of "PUBLIC SALE," or (v) after a Public Offering, upon any sale
by the Investors or an Affiliate of the type described in clause (ii) of the
definition of "PUBLIC SALE" (a "RULE 144 SALE"), to the extent of the lesser of
(a) the number of shares of Employee Stock held by Employee that are not subject
to repurchase at Original Cost and (b) the number of shares of Employee Stock
held by Employee multiplied by a fraction, the numerator of which is the number
of shares of Common Stock sold by the Investors and their Affiliates in the Rule
144 Sale and the denominator of which is the total number of shares of Common
Stock held by the Investors and their Affiliates immediately prior to such sale.
(b) CERTAIN PERMITTED TRANSFERS. The restrictions in this
Section 4 will not apply with respect to (i) transfers of shares of Employee
Stock pursuant to applicable laws of descent and distribution or (ii) transfer
of shares of Employee Stock among Employee's Family Group; provided that such
restrictions will continue to be applicable to the Employee Stock after
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any such transfer and the transferees of such Employee Stock have agreed in
writing to be bound by the provisions of this Agreement.
(c) TERMINATION OF RESTRICTIONS. The restrictions on the
Transfer of shares of Employee Stock set forth in this Section 4 will continue
with respect to each share of Employee Stock until the date on which such
Employee Stock has been transferred in a transaction permitted by this Section 4
(except in a transaction contemplated by Section 4(b)); provided that in any
event such restrictions will terminate on a Sale of the Company.
5. ADDITIONAL RESTRICTIONS ON TRANSFER OF EMPLOYEE STOCK.
(a) LEGEND. The certificates representing the Employee Stock
will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN
REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A STOCK PURCHASE
AGREEMENT BETWEEN THE COMPANY AND AN EMPLOYEE OF THE COMPANY DATED AS OF JULY
31, 1998. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) OPINION OF COUNSEL. No holder of Employee Stock may sell,
transfer or dispose of any Employee Stock (except pursuant to an effective
registration statement under the Securities Act) without first delivering to the
Company an opinion of counsel (reasonably acceptable in form and substance to
the Company) that neither registration nor qualification under the Securities
Act and applicable state securities laws is required in connection with such
transfer.
PROVISIONS RELATING TO EMPLOYMENT
6. CONFIDENTIAL INFORMATION.
(a) Employee acknowledges that the Company and its
Subsidiaries are engaged in the business of acquiring businesses that provide
electronic commerce services and operating those businesses after their
acquisition (the "BUSINESS"). Employee further acknowledges that the Business
and its continued success depend upon the use and protection of a large body of
confidential and proprietary information, and that she holds a position of trust
and confidence by virtue of which she necessarily possesses, has access to and,
as a consequence of hers signing this Agreement, will continue to possess and
have access to, highly valuable, confidential and proprietary information of the
Company and its Subsidiaries not known to the public in general, and that it
would be improper for him to make use of this information for the
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benefit of himself and others. All of such confidential and proprietary
information now existing or to be developed in the future will be referred to in
this Agreement as "CONFIDENTIAL INFORMATION." This includes, without limitation,
information relating to the nature and operation of the Business, the persons,
firms and corporations which are customers or active prospects of the Company
during Employee's employment by the Company, the Company's development,
transition and transformation plans, methodology and methods of doing business,
strategic, acquisition, marketing and expansion plans, including plans regarding
planned and potential acquisitions and sales, financial and business plans,
employee lists, numbers and location of sales representatives, new and existing
programs and services (and those under development), prices and terms, customer
service, integration processes requirements, costs of providing service, support
and equipment and equipment maintenance costs. Confidential Information shall
not include any information that has become generally known to and available for
use by the public other than as a result of Employee's acts or omissions.
(b) Disclosure of any Confidential Information of the Company
shall not be prohibited if such disclosure is directly pursuant to a valid and
existing order of a court or other governmental body or agency within the United
States; provided, however, that (i) Employee shall first have given prompt
notice to the Company of any such possible or prospective order (or proceeding
pursuant to which any such order may result) and (ii) Employee shall afford the
Company a reasonable opportunity to prevent or limit any such disclosure.
(c) During the Employment Period and at all times thereafter,
Employee will preserve and protect as confidential all of the Confidential
Information known to Employee or at any time in Employee's possession or
control. In addition, during the Employment Period and at all times thereafter,
Employee will not disclose to any unauthorized person or use for hers own
account any of such Confidential Information without the Board's written
consent. Employee agrees to deliver to the Company at a Separation, or at any
other time the Company may request in writing, all memoranda, notes, plans,
records, reports and other documents (and copies thereof) containing or
otherwise relating to any of the Confidential Information (including, without
limitation, all acquisition prospects, lists and contact information) which she
may then possess or have under hers control. Employee acknowledges that all such
memoranda, notes, plans, records, reports and other documents are and at all
times will be and remain the property of the Company.
(d) Employee will fully comply with any agreement reasonably
required by any of the Company's affiliates, business partners, suppliers or
contractors with respect to the protection of the confidential and proprietary
information of such entities.
7. ADDITIONAL ACKNOWLEDGMENTS. Employee acknowledges that the
provisions of this Section are in consideration of: (i) employment with the
Company and (ii) additional good and valuable consideration as set forth in this
Agreement. Employee expressly agrees and acknowledges that the restrictions
contained in Section 6 do not preclude Employee from earning a livelihood, nor
does it unreasonably impose limitations on Employee's ability to earn a living.
In addition, Employee agrees and acknowledges that the potential harm to the
Company of its non-enforcement outweighs any harm to the Employee of its
enforcement by injunction or
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otherwise. Employee acknowledges that she has carefully read this Agreement and
has given careful consideration to the restraints imposed upon the Employee by
this Agreement, and is in full accord as to their necessity for the reasonable
and proper protection of the Confidential Information. Employee expressly
acknowledges and agrees that each and every restraint imposed by this Agreement
is reasonable with respect to subject matter, time period and geographical area.
GENERAL PROVISIONS
8. DEFINITIONS.
"AFFILIATE" or "AFFILIATES" of an Investor means any direct or indirect
general or limited partner of such Investor, or any employee or owner thereof,
or any other person, entity or investment fund controlling, controlled by or
under common control with such Investor.
"EMPLOYEE'S FAMILY GROUP" means Employee's spouse and descendants
(whether natural or adopted), any trust solely for the benefit of Employee
and/or Employee's spouse and/or descendants and any retirement plan for the
Employee.
"EMPLOYEE STOCK" will continue to be Employee Stock in the hands of any
holder other than Employee (except for the Company and the Investors and except
for transferees in a Public Sale), and except as otherwise provided herein, each
such other holder of Employee Stock will succeed to all rights and obligations
attributable to Employee as a holder of Employee Stock hereunder. Employee Stock
will also include shares of the Company's capital stock issued with respect to
Employee Stock by way of a stock split, stock dividend or other
recapitalization.
"FAIR MARKET VALUE" of each share of Employee Stock means the average
of the closing prices of the sales of the Common Stock on all securities
exchanges on which such Common Stock may at the time be listed, or, if there
have been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such day, or, if
on any day such Common Stock is not so listed, the average of the representative
bid and asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time,
or, if on any day such Common Stock is not quoted in the NASDAQ System, of the
average of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau
Incorporated, or any similar successor organization, in each such case averaged
over a period of 21 days consisting of the day as of which the Fair Market Value
is being determined and the 20 consecutive business days prior to such day. If
at any time such Common Stock is not listed on any securities exchange or quoted
in the NASDAQ System or the over-the-counter market, the Fair Market Value will
be the fair value of such Common Stock determined in good faith by the Board
(the "BOARD CALCULATION"). If the Employee reasonably disagrees with the Board
Calculation, the Employee may, within 30 days after receipt of the Board
Calculation, deliver a notice (an "OBJECTION NOTICE") to the Company setting
forth the Employee's calculation of Fair Market Value. The Board and the
Employee will negotiate in good faith to agree on such Fair Market Value, but if
such agreement is not reached within 30 days after the Company has received the
Objection Notice, Fair Market Value shall be determined by an appraiser jointly
selected by the Board and the Employee, which appraiser
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shall submit to the Board and the Employee a report within 30 days of its
engagement setting forth such determination. If the parties are unable to agree
on an appraiser within 45 days after the Company has received the Objection
Notice, within seven days, each party shall submit the names of four nationally
recognized investment banking firms, and each party shall be entitled to strike
two names from the other party's list of firms, and the appraiser shall be
selected by lot from the remaining four investment banking firms. The expenses
of such appraiser shall be borne by the Employee unless the appraiser's
valuation is not less than 10% greater than the amount determined by the Board,
in which case, the costs of the appraiser shall be borne by the Company. The
determination of such appraiser shall be final and binding upon all parties. If
the Repurchase Option is exercised within 90 days after a Separation, then Fair
Market Value shall be determined as of the date of such Separation; thereafter,
Fair Market Value shall be determined as of the date the Repurchase Option is
exercised.
"ORIGINAL COST" means, with respect to each share of Employee Stock
purchased hereunder, $0.1055 (as proportionately adjusted for all subsequent
stock splits, stock dividends and other recapitalizations).
"PERSON" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of shares of the Company's Common Stock
approved by the Board.
"PUBLIC SALE" means (i) any sale pursuant to a registered public
offering under the Securities Act or (ii) any sale to the public pursuant to
Rule 144 promulgated under the Securities Act effected through a broker, dealer
or market maker (other than pursuant to Rule 144(k)).
"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to which any person(s) or entity(ies) other than the Investors and its
Affiliates in the aggregate acquire(s) (i) capital stock of the Company
possessing the voting power (other than voting rights accruing only in the event
of a default, breach or event of noncompliance) to elect a majority of the
Company's board of directors (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's capital stock, shareholder or
voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis;
provided that the term "SALE OF THE COMPANY" shall not include a Public
Offering.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated June
29, 1998, among the Company and certain of its stockholders.
"SUBSIDIARY" means any corporation of which fifty percent (50%) or more
of the securities having ordinary voting power in electing the board of
directors are, at the time as of
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which any determination is being made, owned by the Company either directly or
through one or more Subsidiaries. The term Subsidiary shall also include any
joint venture arrangement between the Company and any other entity, including,
without limitation, the Company's joint venture arrangement with Commerce Direct
International, Inc., a Delaware corporation.
"TRANSFER" means to sell, transfer, assign, pledge or otherwise dispose
of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law).
9. NOTICES. Any notice provided for in this Agreement must be
in writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
If to the Company:
AppNet Systems, Inc.
0000-X Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. XxXxxxx
with a copy to:
GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
and
Xxxxxx, Flyer & Xxxxx 0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
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If to the Employee:
Xxxxxxx X. Xxxxxx
0000-X Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
If to the Investors:
GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
and
Smart Technology, L.L.C.
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
and
Xxxxxx, Flyer & Xxxxx
0000 X Xxxxxx, X.X.,
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
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10. GENERAL PROVISIONS.
(a) EXPENSES. Each of the Company and the Employee shall pay
its or hers legal, accounting and other expenses incurred in connection with the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated by this Agreement.
(b) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Employee Stock in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Employee Stock as the owner of
such stock for any purpose.
(c) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) INTENDED THIRD-PARTY BENEFICIARIES. The Investors are
intended to be third-party beneficiaries to this entire Agreement and the rights
and obligations of the parties hereto. It is understood and agreed by the
parties hereto that this Agreement shall be enforceable by GTCR and, provided
GTCR is seeking to enforce substantially the same rights, the other Investor(s)
in accordance with its terms as though each of the Investors were a party to
every provision hereof. Except as expressly provided herein, no other third
parties are intended by the parties hereto to be beneficiaries hereof.
(e) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(f) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(g) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by Employee, the Company, the Investors and their respective successors and
assigns (including subsequent holders of Employee Stock); provided that the
rights and obligations of Employee under this Agreement shall not be assignable
except in connection with a permitted transfer of Employee Stock hereunder. The
rights and obligations of GTCR under this Agreement may be assigned at any time,
in whole or in part, to any investment fund managed by GTCR, or any successor
thereto; provided that such assignment occurs in the manner provided in the
Purchase Agreement.
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(h) CHOICE OF LAW. The corporate law of the State of Delaware
will govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the internal laws of the State of Maryland, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Maryland or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Maryland.
(i) REMEDIES. Each of the parties to this Agreement (including
the Investors) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorney's fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(j) AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended and waived only with the written consent of the Company and the
Employee.
(k) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or holiday
in the state in which the Company's chief Employee office is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or holiday.
(l) TERMINATION. This Agreement (except for the provisions of
Section 6) shall survive a Separation and shall remain in full force and effect
after such Separation.
(m) ADJUSTMENTS OF NUMBERS. All numbers set forth herein which
refer to share prices or amounts will be appropriately adjusted to reflect stock
splits, stock dividends, combinations of shares and other recapitalizations
affecting the subject class of stock.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the date first written above.
APPNET SYSTEMS, INC.
By: /s/ XXX X. XXXXX
------------------------------------------
Xxx X. Xxxxx
President and Chief Employee Officer
/s/ XXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxx
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