Exhibit 10.8
WORK MANAGEMENT SOLUTIONS, INC.
RESTRICTED STOCK AND VOTING AGREEMENT
AGREEMENT made as of this 10th day of April, 1997, between Work Management
Solutions, Inc., a Delaware corporation (the "Company"), LRF Investments, Inc.
("LRF"), Echo Services, Inc. ("Echo") (LRF and Echo hereinafter collectively
referred to herein as the "Investors"), and Xxxx X. Xxxxx (the "Stockholder").
WITNESSETH:
WHEREAS, the above-named purchaser of shares of Common Stock, par value
$.01 per share (the "Common Stock") of the Company is serving, and will
henceforth serve, as an employee and officer with the Company;
WHEREAS, the Company and the Investors wish for the Stockholder to have a
proprietary interest in the Company's financial success and the Company wishes
to sell to such Stockholder 617,417 shares of the Company's authorized, but
unissued, Common Stock (the "Restricted Shares"); and
WHEREAS, one of the conditions to the sale of Common Stock to the
Stockholder and to Xxxxxxx X. Xxxxxx, another employee and principal officer
(Xx. Xxxxx, together with Mr. Grange, referred to herein as the "Stockholders")
is the execution of a voting agreement relating to cooperation between the
Stockholders and the Investors, with respect to certain significant transactions
undertaken by the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1 -- ACQUISITION OF SHARES
1.1(a) Purchase of Shares. The Stockholder represents and warrants to the
Company that the Stockholder has no present equity, or claims to equity,
contingent or otherwise, in the Company, other than the Restricted Shares being
purchased hereunder. Contemporaneously with the execution of this Agreement,
Stockholder is purchasing the Restricted Shares, subject to the terms and
conditions set forth in this Agreement, at a purchase price of $.01 per
Restricted Share ("Purchase Price"), such amount representing the fair market
value of such shares on the date hereof. The aggregate purchase price for the
Restricted Shares is being paid by the Stockholder by check payable to the order
of Work Management Solutions, Inc. or such other method as may be acceptable to
the Company. Upon receipt of payment by the Company for the Restricted Shares,
the Company shall issue to the Stockholder one or more certificates in the name
of the Stockholder for that number of Restricted Shares being purchased.
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1.2 Investment Representations. The Stockholder represents, warrants and
covenants as follows:
(a) The Stockholder is acquiring the Restricted Shares for his own
account for Investment only, and not with a view to, or for sale in connection
with, any distribution of the Restricted Shares in violation of the Securities
Act of 1933, as amended (the "Securities Act"), or any rule or regulation under
the Securities Act.
(b) He has had such opportunity as he has deemed adequate to obtain
from representatives of the Company such information as is necessary to permit
him to evaluate the merits and risks of an investment in the Company.
(c) He has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in an investment in
the Restricted Shares and to make an informed investment decision with respect
to such investment.
(d) He can afford the complete loss of the value of the Restricted
Shares and is able to bear the economic risk of holding such Restricted Shares
for an indefinite period.
(e) He understands that (i) the Restricted Shares have not been
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act, (ii) the Restricted Shares cannot
be sold, transferred or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from registration is then
available; (iii) in any event, the exemption from registration under Rule 144
will not be available unless a public market then exists for the Common Stock,
adequate information concerning the Company is then available to the public, and
other terms and conditions of Rule 144 are complied with: and (iv) there is now
no registration statement on file with the Securities and Exchange Commission
with respect to any stock of the Company and the Company has no obligation or
current intention to register the Restricted Shares under the Securities Act;
(v) the Restricted Shares are also subject to certain contractual restrictions
on transfer contained in Article 2 of this Restricted Stock and Voting
Agreement, and (vi) all certificates representing such Restricted Shares shall
bear a legend in the form described in Section 4.5 hereof.
ARTICLE 2 -- COMPANY REPURCHASE RIGHT: RIGHTS OF FIRST REFUSAL
2.1 Repurchase Option; Vesting Resulting from Lapse of Time and Other
Events.
(a) The Company shall retain the right, under certain circumstances
and as hereinafter set forth, to repurchase any or all of the Restricted Shares
(the "Repurchase Option") from the Stockholder or his valid transferees (as
defined in and pursuant to Section 2.5 herein), at the original Purchase Price
(the "Option Price") until
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such time as a portion or all of the Restricted Shares shall become Vested
Shares (as defined below).
(b) During the period beginning with the date hereof and ending on
December 31, 1998: (i) if there has occurred a Trigger Event in which the
Minimum Liquidation Value has been achieved (as such terms are defined in
subsections 2.4(d) and 2.9 hereof), and the Stockholder remains at the time of
the Trigger Event in the employ of the Company, then the Company's Repurchase
Option shall immediately expire with respect to 308,708 Restricted Shares and
also to such additional number of Restricted Shares as shall have vested in the
Stockholder pursuant to subsection 2.9; or (ii) if no such Trigger Event has
occurred within such two year period, and the Stockholder remains in the employ
of the Company on the second anniversary of the date hereof, then the Company's
Repurchase Option shall immediately expire with respect to 308,708 Restricted
Shares and shall remain applicable to the balance of the Stockholder's
Restricted Shares; or (iii) if prior to the occurrence of a Trigger Event in
which the Minimum Liquidation Value has been achieved, and if the Stockholder
shall (A) die, or (B) suffer a permanent Disability (as hereinafter defined) or
(C) be terminated other than For Cause (as hereinafter defined), then the
Company's Repurchase Option shall immediately expire with respect to 308.708
Restricted Shares. Implicit in the foregoing is the construct that if the
Stockholder ceases to be employed by the Company prior to the second anniversary
of the date hereof because the Stockholder voluntarily ceases his employment
relationship with the Company, or is terminated For Cause, then the Company
shall retain its Repurchase Option with respect to all of the Restricted Shares.
(c) For purposes of this Agreement, "Disability" shall mean that an
independent medical doctor (selected by the Company's health insurance carrier
or disability insurer) has certified that the Stockholder has for three (3)
months, consecutive or nonconsecutive, in any twelve (12) month period, been
disabled in a manner which seriously interferes with his ability to perform his
responsibilities as an employee of the Company. For purposes of this Agreement,
"For Cause" shall mean the determination by the Company or the Company's Board
of Directors that any one or more of the following has occurred: (i) the
Stockholder has committed an act of fraud, embezzlement, misappropriation or
breach of fiduciary duty against the Company, ii) the Stockholder shall have
been convicted by a court of competent jurisdiction of, or pleaded guilty or
nolo contendere to, any felony or any misdemeanor (other than minor traffic
violations or crimes not involving a criminal intent), (iii) the Stockholder
shall have failed to perform the duties incident to his employment with the
Company on a regular basis or the Stockholder has been chronically absent from
work (excluding vacations, illnesses, or leaves of absence approved by the
Company's Board of Directors), and such failure or absence shall have continued
for a period of thirty (30) days after written notice to the Stockholder
specifying such failure or absence in reasonable detail, (iv) the Stockholder
has refused, after explicit written notice, to obey any lawful resolution of the
of or direction by the Company's Board of Directors which is consistent with the
duties incident to his employment, (v) the Stockholder shall have engaged in the
unlawful use (including being under the influence) or possession of illegal
drugs on the Company's
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premises, or (vi) the Stockholder shall have materially breached any of the
provisions of this Agreement or any other agreements of employment or otherwise,
between the Stockholder and the Company which have been entered into on the date
of this Agreement, as such agreements are amended from time to time and in
effect, on the date of such breach, or any other agreements between the
Stockholders and the Company entered into after the hereof and in effect on the
date of such breach.
2.2 Exercise of Repurchase Option and Closing.
(a) The Company may exercise the Repurchase Option on the Restricted
Shares by delivering or mailing to the Stockholder (or his estate), in
accordance with Section 4.7, written notice of exercise within 120 days after
the cessation of employment of the Stockholder with the Company. Such notice
shall specify the number of shares to be purchased. If and to the extent the
Repurchase Option is not so exercised within such 120-day period, the Repurchase
Option shall automatically terminate effective upon the expiration of such
120-day period.
(b) Within 10 days after his receipt of the Company's notice of the
exercise of the Repurchase Option pursuant to subsection (a) above, the
Stockholder (or his estate) shall tender to the Company at its principal
offices, the certificate or certificates representing the Restricted Shares
which the Company has elected to purchase, duly endorsed in blank by the
Stockholder or with duly executed stock powers attached thereto, all in form
suitable for the transfer of such Restricted Shares to the Company or its
assignee. Upon the receipt of such Restricted Shares, the Company shall deliver
or mail to the Stockholder a check in the amount of the aggregate Option Price
therefor.
(c) After the time at which any Restricted Shares are required to be
delivered to the Company pursuant to subsection (b) above, the Company shall not
pay any dividend to the Stockholder on account of such Restricted Shares or
permit the Stockholder to exercise any of the privileges or rights of a
stockholder with respect to such Restricted Shares.
(d) The Option Price may be payable, at the option of the Company,
by cancellation of all or a portion of any outstanding indebtedness of the
Stockholder to the Company or in cash (by check), or both.
(e) The Company shall not purchase any fraction of a Restricted
Share upon exercise of the Repurchase Option, and any fraction of a Restricted
Share resulting from a computation made pursuant to Section 2.1 of this
Agreement shall be rounded to the nearest whole Restricted Share (with any
one-half Restricted Share being rounded upward).
2.3 Restrictions on Transfer. The Stockholder shall not, during the term
of this Agreement, sell, assign, transfer, pledge, hypothecate or otherwise
dispose of, by
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operation of law or otherwise (collectively "transfer"), any of the Restricted
Shares, or any interest therein; except that Restricted Shares which are no
longer subject to the Repurchase Option may be transferred in compliance with
Section 2.4 or 2.5 hereof and subject to the limitations on transfer set forth
in Section 2.6 and 2.7 hereof.
2.4 Company's Rights of First Refusal.
(a) Exercise of Right: If the Stockholder or any Authorized
Transferee (the "Transferor") desires to transfer all or any part of the
Restricted Shares as to which the Company's Repurchase Option has expired
("Vested Shares") to any person other than the Company (an "Offeror"), the
Transferor shall: (i) obtain in writing an irrevocable and unconditional bona
fide offer (the "Offer") for the purchase thereof from the Offeror; and (ii)
give written notice (the "Transfer Notice") to the Company setting forth the
Stockholder's desire to transfer such shares, which Transfer Notice shall be
accompanied by a photocopy of the Offer and shall set forth at least the name
and address of the Offeror and the price and terms of the bona fide offer. Upon
receipt of the Transfer Notice, the Company shall have a non-assignable option
to purchase all (and not less than all) of such shares (the "Option Shares")
specified in the Transfer Notice, such option to be exercisable by giving,
within 15 days after receipt of the Transfer Notice, a written counter-notice to
the Transferor. If the Company elects to repurchase all of such Option Shares,
it shall be obligated to purchase, and the Stockholder shall be obligated to
sell such Option Shares, at the price and terms indicated in the Offer within 15
days from the date of delivery by the Company of such counter-notice.
(b) Sale of Option Shares to Offeror: The Transferor may, for 60
days after the expiration of the 15-day and 10-day periods during which the
Company and the Investors, pursuant to 2.4(e), may give the counter-notice,
sell, pursuant to the terms of the Offer, all of such Option Shares not
purchased or agreed to be purchased by the Company; provided, however, that the
Transferor shall not sell such Option Shares to the Offeror if the Offeror is a
Competitor or Strategic Partner (both terms as hereinafter defined) of the
Company and the Company gives written notice to the Transferor, within 15 days
of its receipt of the Transfer Notice, stating that the Transferor shall not
sell such Option Shares to such Offeror; and provided, further, that prior to
the sale of such Option Shares to the Offeror, the Offeror shall execute an
agreement with the Company pursuant to which the Offeror agrees to be subject to
the restrictions set forth in this Section 2.4. For purposes of this Agreement,
a Competitor shall mean a person, company or other entity who competes with the
Company on a consistent and frequent basis for the same clients and customers in
the marketplace, such entities presently including, Computer Sciences
Corporation, through its Artemis product line, and Applied Business
Technologies, Inc. For purposes of this Agreement only, a Strategic Partner
shall mean any person, company or other entity with whom the Company has a
significant business relationship, which presently would consist of Planview,
Inc. If any or all of such Option Shares are not sold pursuant to an Offer
within the time permitted above, the unsold Option Shares shall remain subject
to the terms of this Section 2.4.
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(c) Adjustments for Changes in Capital Structure: If there shall be
any change in the Common Stock of the Company through recapitalization, stock
dividend, stock split, combination or exchange of shares, or the like, the
restrictions contained in this Section 2.4 shall apply with equal force to
additional and or substitute securities of the Company, if any, received by the
Stockholder in exchange for, or by virtue of his ownership of, Option Shares.
(d) Trigger Event Defined: For purposes of this Agreement, a
"Trigger Event" shall mean a distribution of the Company's Common Stock pursuant
to (i) a liquidation, dissolution, winding-up of the Company, (ii) a merger in
which the Company is not the surviving entity, sale of assets, consolidation or
other disposition of the assets of the Company in which the Company is not the
surviving entity, or (iii) upon the first underwritten public offering under the
Securities Act or a successor statute by the Company of any of its equity
securities (a "Public Offering"), pursuant to a registration statement on Forms
S-1 or SB-1 or their then equivalents (a "Trigger Event"). The first refusal
rights of the Company set forth herein shall expire after the occurrence of a
Trigger Event as specified in Section 4.8.
(e) Investors' Rights of First Refusal. Should the Company not
exercise its rights of first refusal within 15 days as described in this
section, the same rights of first refusal shall then apply with equal force to
the Investors for a 10-day period under the same terms and limitations described
in this Section 2.4. The Investors' rights of first refusal shall likewise
automatically expire upon a Trigger Event.
2.5 Authorized Transferees. Notwithstanding anything to the contrary set
forth in Section 2.3 and 2.4, the Stockholder may transfer Vested Shares to the
following persons (hereinafter "Authorized Transferees"):
(i) the Stockholder as the sole trustee of a trust revocable by
the Stockholder alone;
(ii) the Stockholder's executor, administrator, guardian,
conservator or other legal representative;
(iii) the Stockholder's spouse, or to any of his children or their
issue (or to custodians for the benefit of minor children or
issue):
provided, that in any such case, the Authorized Transferee agrees in writing to
be bound by the provisions of this Agreement.
2.6 Market "Stand-Off" Agreement. The Stockholder hereby agrees that,
during the period of duration (not to exceed one hundred eighty (180) days)
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the effective date of a registration statement of the
Company filed
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under the Securities Act, such Stockholder shall not, to the extent requested by
the Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale, grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by the
Stockholder at any time during such period except shares included in such
registration. The market "stand-off" agreement established pursuant to this
Section 2.6 shall have perpetual duration except as provided in the next
succeeding sentence. Notwithstanding the preceding sentence, such "stand-off"
agreement shall terminate if and only when the Stockholder owns less than 5% of
all of the outstanding shares of Common Stock, and the Stockholder ceases to be
employed by the Company or ceases to be involved in any active management of or
consultation to the Company.
2.7 Limitations on Transfer. The Stockholder agrees that he will not
mortgage, pledge, hypothecate or otherwise encumber his shares of Common Stock,
whether Restricted Shares or Vested Shares, without the prior written consent of
the holders of at least seventy-five (75%) of the outstanding Shares of Common
Stock.
2.8 Transfers in Violation of Agreement. If any transfer of the Restricted
Shares or the Vested Shares (the "Shares") is made or attempted contrary to the
provisions of this Agreement, the Company shall have the right to purchase the
Restricted Shares or the Vested Shares (the "Shares") from the owner thereof or
his transferee at any time before or after the transfer, as herein provided. In
the event that the Company elects to exercise its Repurchase Option or the
Company or the Investors elect to exercise their respective rights of first
refusal hereunder, it may do so by canceling the certificate(s) representing the
Shares and depositing the purchase price determined hereunder in a bank account
for the benefit of Stockholder, whereupon such Shares shall be, for all
purposes, canceled and neither the Stockholder nor any transferee shall have any
rights as one of its stockholders with respect to such Shares for any purpose,
including, without limitation, dividend and voting rights, until there has been
compliance with all applicable provisions of this Agreement. In addition to any
other legal or equitable remedies which it may have under this Agreement or
otherwise, the Company may enforce its rights by actions for specific
performance (to the extent permitted by law).
2.9 Vesting of Shares Upon a Trigger Event. At any time during the term
hereof, if there shall occur a Trigger Event, then: (i) if the Liquidation Value
(as hereafter defined) shall exceed the amount of $1,000,000 (the "Minimum
Liquidation Value"), then the Company's Repurchase Option shall immediately
expire with respect to 5,051.6 Restricted Shares (2% of one half of the initial
total of Restricted Shares purchased hereunder) per million dollars (prorated
for any portion thereof) of Liquidation Value obtained from the Trigger Event;
or (ii) if the Liquidation Value is less than $1,000,000, then 308.708 shares of
Restricted Shares shall not become Vested Shares hereunder (in addition to any
portion of the remaining Restricted Shares which may not become Vested Shares
hereunder if the Stockholder leaves the employ of the Company under certain
circumstances as set forth in subsection 2.2 hereof). For purposes hereof,
Liquidation
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Value shall mean the value assigned to the Company as a whole or paid therefor
determined by (a) its assessed value in a court-ordered or voluntary liquidation
of the Company's assets, (b) the aggregate purchase price paid for all of the
assets or shares pursuant to any purchase and sale or merger agreement for the
assets or stock of the Company as a going concern, or (c) with respect to a
Public Offering, the dollar value per share taken at the mid-point of the
filing range and multiplied by the number of shares outstanding on a fully
diluted basis. Restricted Shares that remain unvested upon the occurrence of a
Trigger Event at a particular liquidation value, will be automatically
repurchased by the Company at the Purchase Price with such sum immediately due
and payable to the Stockholders in the respective amount representing the shares
of Common Stock not vested.
2.10 Dilution.
(a) Stock Option Plan. It is the intent of all parties to this Agreement
to establish a stock option plan for employees, officers, directors and
consultants of the Company (the "Stock Option Plan"). The Stock Option Plan
would initially allow an additional fifteen percent (15%) of the outstanding
shares of Common Stock of the Company to be available through options. The
Company, the Stockholder and the Investors hereby agree that the shares sold
pursuant to this Agreement and all shares previously and now held by the
Investors shall be subject to future dilution on a pro rata basis, including,
but not limited to those shares granted through options pursuant to the Stock
Option Plan.
(b) Debt Agreements. The Investors hereby agree not to enter into at any
time from the date hereof until the termination of this Agreement, any
agreements with any third party whereby the Investors' existing credit
extensions to the Company are converted into equity securities of the Company
without the written consent of each of the Stockholders.
2.11 Expiration of Repurchase Rights. Notwithstanding the provisions of
this Agreement relating to the automatic expiration of the Repurchase Rights
upon a Trigger Event, the rights of both the Company and the Investors to
repurchase shares pursuant to this Agreement shall expire and otherwise be of no
effect upon the lapse often (10) years from the date hereof.
ARTICLE 3 - VOTING AGREEMENT
3.1. Corporate Action. Except as expressly provided herein or as required
by law, so long as any shares of Common Stock remain outstanding, the Company
shall not, and shall not permit any subsidiary to, nor shall either Stockholder
vote in favor of, without the approval by vote or written consent of the
Investors:
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(i) authorize or issue, or obligate itself to authorize or issue,
any other equity security senior to or on a parity with the
Common Stock or create any other class of stock, as to rights
in liquidation, voting rights, dividend rights or otherwise,
or issue additional shares of Common Stock in an amount in
excess of 250,000 shares, other than shares issuable upon
exercise of options granted under the Company's Stock Option
Plan;
(ii) merge or consolidate with, or sell, assign, lease or otherwise
dispose of or voluntarily part with the control of (whether in
one transaction or in a series of transactions) all, or
substantially all of its assets (whether now owned or
hereinafter acquired) or sell, assign or otherwise dispose of
(whether in one transaction or in a series of transactions)
any of its accounts receivable (whether now in existence or
hereinafter created) at a discount or with recourse, to any
person, or permit any subsidiary to do any of the foregoing,
except for sales or other dispositions of assets in the
ordinary course of business and except that (1) any subsidiary
may merge into or consolidate with or transfer assets to any
other subsidiary and (2) any subsidiary may merge into or
transfer assets to the Company;
(iii) authorize an initial underwritten public offering by the
Company under the Securities Act of any of its equity
securities for its own account pursuant to an offering
registered on Form S-1 or Form SB-1 or their then equivalents;
(iv) elect directors;
(v) increase compensation of either Stockholder by an amount in
excess of 20% of the amount paid in the then current fiscal
year; or
(vi) amend the Certificate of Incorporation or By-laws.
ARTICLE 4 -- MISCELLANEOUS
4.1 Adjustments for Stock Splits, Stock Dividends, etc. If from time to
time during the term of the Purchase Option there is any stock split-up, stock
dividend, stock distribution or other reclassification of the Common Stock of
the Company, any and all new, substituted or additional securities to which the
Stockholder is entitled by reason of his or her ownership of the Restricted
Shares shall be immediately subject to the Purchase Option, the restrictions on
transfer and the other provisions of this Agreement in the same
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manner and to the same extent as the Restricted Shares, and the Option Price
shall be appropriately adjusted.
4.2 Withholding Taxes.
(a) The Stockholder acknowledges and agrees that the Company has the
right to deduct from payments of any kind otherwise due to the Stockholder any
federal, state or local taxes of any kind required by law to be withheld with
respect to the purchase of the Restricted Shares by the Stockholder.
(b) The Stockholder hereby agrees to make a timely election under
Section 83(b) of the Internal Revenue Code of 1986, as amended, and to recognize
ordinary income in the year of acquisition of the Restricted Shares, the Company
will require at the time of such election an additional payment for withholding
tax purposes based on the difference, if any, between the purchase price for
such Restricted Shares and the fair market value of such Restricted Shares as of
the date of the purchase of such Restricted Shares by the Stockholder.
4.3 No Obligation to Continue Employment. Nothing contained in this
Agreement shall be construed as giving the Stockholder any further employment
rights not any right to continue his employment with the Company.
4.4 Waiver; Disposition of Stock. From time to time the Company or the
Investor may waive their respective rights hereunder either generally or with
respect to one or more specific transfers which have been proposed, attempted or
made. All action to be taken by the Company hereunder shall be taken by vote of
a majority of its disinterested members of the Company's Board of Directors then
in office. Any Restricted Shares which the Company has elected to purchase
hereunder may be disposed of by the Company's Board of Directors in such manner
as it deems appropriate, with or without further restrictions upon the transfer
thereof.
4.5 Restrictive Legends. All certificates representing Restricted Shares
shall have affixed thereto legends in substantially the following form:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and an option to purchase set forth in a
certain Restricted Stock and Voting Agreement among the corporation
and the registered owner of this certificate (or his predecessor in
interest and certain other stockholders of the corporation) and
other Investors in the corporation, and such Agreement is available
for inspection without charge at the office of the Secretary of the
corporation."
"The shares represented by this certificate have not been registered
under the Securities Act, as amended, and may not be sold.
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transferred or otherwise disposed of in the absence of an effective
registration statement under such Securities Act or an opinion of
counsel satisfactory to the corporation to the effect that such
registration is not required."
4.6 Successors and Assigns; Assignment. This Agreement shall be binding
upon the parties hereto and their heirs, representatives, successors and
assigns. The Company may assign its rights hereunder either generally or from
time to time.
4.7 Notices. All notices to a party hereto shall be in writing and shall
be deemed to have been adequately given it delivered in person or mailed,
postage pre-paid and registered or certified mail:
If to the Company:
Work Management Solutions, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: President
If to the Investors, both to:
LRF Investments, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to Stockholder:
Xxxx X. Xxxxx
c/o Work Management Solutions, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or to such other address as any party may from time to time designate for itself
by notice in writing given to the other parties hereto.
4.8 Term and Termination. This Agreement shall terminate upon the
happening of a Trigger Event in which the Minimum Liquidation Value has been
achieved, provided, however, that the Company shall have 60 day's after the
occurrence of such Trigger Event to exercise its Repurchase Option as to any
then Unvested Restricted Shares. If such a Trigger Event fails to occur during
the period of ten years from the date hereof and the Stockholder continues at
such time to serve as an employee or director of the Company, then the Company
shall have no further right to exercise its Repurchase
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Option with respect to any non-vested Restricted Shares on the tenth anniversary
of the date hereof, and thereafter, this Agreement shall automatically
terminate, unless otherwise amended by all the parties hereto, and all of the
Restricted Shares shall automatically vest and become Vested Shares and this
Agreement shall no longer be of any force and effect. This Agreement (other than
the provisions of Section 2.6 and Article 3 hereof) shall otherwise remain in
effect until all the Restricted Shares covered by the Repurchase Option have
been disposed of pursuant to this Agreement and the Company and the Investors'
rights of first refusal with respect to the Restricted Shares have also expired
pursuant to the terms of Section 2.1, 2.2, 2.3 and 2.4 above. The provisions of
Article 3 shall terminate on the earliest to occur of the following: (a)
immediately prior to the Public Offering by the Company, or (b) immediately
prior to the consummation of the sale of all, or substantially all, of the
Company's assets or capital stock or a merger, consolidation, reorganization or
other business combination. The provisions of Section 2.6 shall have perpetual
duration except as otherwise specifically provided in Section 2.6.
4.9 Amendments. This Agreement nor any provision hereof may be amended,
changed, discharged or modified in whole or in part only by an instrument in
writing signed by the Company, the Investor and the Stockholder except as
otherwise specifically provided in Section 2.6.
4.10 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and all premises, representations, understandings,
warranties and agreements with reference to the subject matter hereof have been
expressed herein or in the documents incorporated herein by reference.
4.11 Applicable Law; Severability. This Agreement shall be governed by and
construed and enforced in accordance with Massachusetts law. Wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision hereof shall be
prohibited by or invalid under any such law, that provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating or
nullifying the remainder of that provision or any other provisions of this
Agreement.
4.12 Injunctive Relief. It is acknowledged that it will be impossible to
measure the damages that would be suffered by the Investors and the Company if
the Stockholder fails to comply with the provisions of this Agreement and that
in the event of any such failure, the Investors and the Company will not have an
adequate remedy at law, and they shall therefore, be entitled to obtain specific
performance of the Stockholder's obligations hereunder and to obtain immediate
injunctive relief.
4.13 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed in original but all of which
together shall constitute one and the same instrument.
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4.14 Effect of Headings. Any table of contents, title of any article or
section heading herein contained is for convenience or reference only and shall
not affect the meaning of construction of any of the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 14 -
IN WITNESS WHEREOF, the Stockholder has hereunto set his hand and the
Company has authorized this instrument to be signed by its officers thereunder
duly authorized, effective as an instrument under seal.
THE COMPANY: WORK MANAGEMENT SOLUTIONS,
INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: President/CEO
THE INVESTORS: LRF INVESTMENTS, INC.
By:
-----------------------------
Name:
Title:
ECHO SERVICES, INC.
By:
-----------------------------
Name:
Title:
THE STOCKHOLDER: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Address: 0 Xxxxxx Xx
------------------------
Xxxxx XX 00000
------------------------
- 14 -
IN WITNESS WHEREOF, the Stockholder has hereunto set his hand and the
Company has authorized this instrument to be signed by its officers thereunder
duly authorized, effective as an instrument under seal.
THE COMPANY: WORK MANAGEMENT SOLUTIONS,
INC.
By:
-----------------------------
Name:
Title:
THE INVESTORS: LRF INVESTMENTS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title: President
ECHO SERVICES, INC.
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title:
THE STOCKHOLDER:
---------------------------------
Xxxx X. Xxxxx
Address:
------------------------
------------------------
