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EXHIBIT 10.5
XXXXXX.XXX, INC.
REPURCHASE AGREEMENT
This Agreement is entered into as of June 21, 1996 by and between
Xxxxxx.xxx, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxx
("Investor").
RECITALS
A. Prior to the date of this Agreement, the Company sold to
Investor and Investor purchased from the Company 1,700,000 shares of common
stock, $.01 par value per share, of the Company (the "Stock") at a price of
$.006 per share ("Purchase Price").
B. The Company and each of Kleiner, Perkins, Xxxxxxxx & Xxxxx,
VIII and KPCB Information Sciences Zaibatsu Fund II (the "Series A Investors")
are entering into a Series A Preferred Stock Purchase Agreement of even date
herewith (the "Series A Agreement") pursuant to which the Series A Investors
are purchasing from the Company an aggregate of 569,396 shares of Series A
Preferred Stock, $.01 par value per share, of the Company for an aggregate
purchase price of $8,000,000;
C. In order to induce the Company to enter into the Series A
Agreement, and to induce the Series A Investors to invest funds in the Company
pursuant to the Series A Agreement, Investor has agreed that a percentage of
the Stock originally purchased by such Investor from the Company be subject to
a purchase option in favor of the Company, and certain other matters set forth
herein.
AGREEMENTS
In consideration of the foregoing and the other provisions set forth
herein, the parties hereby agree as follows:
1. PURCHASE OPTION
Six percent (6%) of the Stock (such 102,000 shares, subject to
increase or decrease pursuant to any forward or reverse stock split, stock
dividend or similar non-economic adjustment being referred to herein as the
"Option Shares") shall be subject to the following option (the "Purchase
Option"):
(a) In the event that, prior to the termination of this
Agreement, Investor ceases to be continuously employed by the Company, or a
parent or
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subsidiary or successor or affiliate of the Company, due either to his
voluntary resignation (other than due to disability) or to termination by the
Company for Cause (as defined below), the Company may exercise the Purchase
Option. For the purpose of this paragraph 1, Investor's "continuous
employment" shall cease when Investor ceases to be actively employed by the
Company or a parent or subsidiary or successor or affiliate of the Company, as
determined in the reasonable discretion of the Board of Directors of the
Company after at least 30 days' prior written notice is provided to Investor
that such a determination is under consideration. Vacations and absences due
to illness, disability or family crisis shall not be considered in determining
whether a cessation of Investor's active employment has occurred. The date
when continuous employment ceases is hereinafter referred to as the Termination
Date. The term "Cause" shall mean: (i) Investor's conviction of (or plea of
guilty or nolo contendere to) a felony which had or will have a material
detrimental effect on the Company's business, (ii) a grossly negligent or
willful act by Investor which constitutes gross misconduct and is injurious to
the Company, and (iii) continued violations by Investor of his material duties
which are demonstrably willful and deliberate or grossly negligent on
Investor's part after there has been delivered to Investor a written demand for
performance from the Company which describes the basis for the Company's belief
that Investor has not substantially performed his duties.
The Company shall have the right at any time within forty-five
(45) days after the Termination Date, provided that such date is prior to the
termination of this Agreement, to purchase from the Investor, at a price per
share equal to the Purchase Price (appropriately adjusted for any subsequent
stock split, dividend, combination, or other recapitalization) (the "Repurchase
Price"), up to but not exceeding a number of Option Shares equal to one hundred
percent (100%) of the Option Shares less 2,833 Option Shares (appropriately
adjusted for any subsequent stock split, dividend, combination, or other
recapitalization) for each completed month of employment with the Company
between the date of this Agreement (the "Commencement Date") and the
Termination Date.
(b) The Purchase Option, if exercised by the Company,
shall be exercised by written notice signed by an officer or director of the
Company after approval by the Board of Directors and delivered to Investor on
or prior to the expiration of the 30 day period referred to in paragraph (a)
above. The Company may pay for the Option Shares it has elected to repurchase
(i) by delivery to the Investor of a check in the amount of the aggregate
Repurchase Price for the number of shares of Stock being repurchased, (ii) by
cancellation by the Company of an amount of Investor's indebtedness to the
Company or (iii) by a combination of (i) and (ii), so that the combined payment
to the Investor and cancellation of indebtedness of the Investor equals such
aggregate Repurchase Price. Payment of the Repurchase Price shall be
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completed within five business days after notice of exercise of the Purchase
Option is delivered to Investor.
(c) Immediately prior to the consummation or occurrence
of any of the following:
(i) any merger, sale of assets, consolidation,
reorganization or other sale of the Company as a result of which securities
representing a majority of the voting power of the Company are held by persons
or entities that held less than a majority voting interest in the Company prior
to such transaction;
(ii) the liquidation, dissolution or indefinite
cessation of the business operations of the Company;
(iii) the execution by the Company of a general
assignment for the benefit of creditors, the appointment of a receiver or
trustee to take possession of the property and assets of the Company, or the
filing of a petition under applicable bankruptcy laws with respect to the
Company;
(iv) consummation of an initial registered public
offering of the Company's Common Stock under the Securities Act of 1933, as
amended;
(v) the death or disability of Investor; or
(vi) the cessation of Investor's employment with
the Company (or a parent or subsidiary or successor or affiliate of the
Company) due to any reason other than voluntary resignation (other than due to
disability) or termination by the Company for Cause;
the Purchase Option shall automatically lapse in its entirety and this
Agreement shall thereupon terminate.
2. LEGENDS
All certificates representing any Option Shares subject to the
provisions of this Agreement shall have endorsed thereon an appropriate legend
referencing the restrictions imposed by this Agreement.
3. RIGHTS OF INVESTOR AS SHAREHOLDER
Subject to the terms hereof, Investor shall have all the rights of a
shareholder with respect to the Option Shares during the term of this
Agreement, including
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without limitation the right to vote and receive any dividends or other
distributions declared thereon.
4. ADJUSTMENTS FOR STOCK SPLITS AND OTHER NON-ECONOMIC EVENTS
If, at any time or from time to time, there is any stock dividend,
stock split, recapitalization, or other similar change or adjustment made with
respect to the outstanding securities of the Company, any and all new,
substituted or additional securities to which Investor is entitled by reason of
his or her ownership of the Option Shares then subject to the Purchase Option
shall be included in the definition of "Option Shares" for purposes of this
Agreement and shall be subject to the Purchase Option pursuant to Section 1
with the same force and effect as the Option Shares currently subject to this
Agreement and the Purchase Option. While the total Repurchase Price shall
remain the same after each such event, the Repurchase Price per share of Stock
upon exercise of the Purchase Option shall be appropriately adjusted as
reasonably determined by the Board of Directors of the Company.
5. TERMINATION
This Agreement shall terminate in its entirety upon the lapse of the
Purchase Option in its entirety pursuant to Section 1(c) or otherwise, or upon
the completion of a repurchase transaction pursuant to an exercise of the
Purchase Option, in either case in accordance with the terms of this Agreement.
6. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7. AMENDMENT
This Agreement shall not be subject to modification or amendment in
any respect, except by an instrument in writing signed by Investor and on
behalf of the Company and approved by its Board of Directors.
8. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Washington, without regard to
principles of conflict of laws.
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9. ARBITRATION
Any controversies or claims arising out of or relating to this
Agreement shall be fully and finally settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
"AAA Rules"), conducted by one arbitrator either mutually agreed upon by the
parties or chosen in accordance with the AAA Rules, except that the parties
thereto shall have any right to discovery as would be permitted by the Federal
Rules of Civil Procedure for a period of 90 days following the commencement of
such arbitration, and the arbitrator thereof shall resolve any dispute which
arises in connection with such discovery. Arbitration proceedings shall be
conducted in Seattle, Washington.
10. NOTICES
All notices, demands or other communications desired or required to be
given by any party to any other party hereto shall be in writing and shall be
deemed effectively given upon (a) personal delivery to the party to be
notified, (b) upon confirmation of receipt of telecopy or other electronic
facsimile transmission, (c) one business day after deposit with a reputable
overnight courier, prepaid for priority overnight delivery and addressed as set
forth in (d), or (d) five days after deposit with the United States Post
Office, postage prepaid, and addressed as follows: (i) if to Investor, to
Xxxxxxx X. Xxxxx, c/o Xxxxxx.xxx, Inc., at the address and facsimile number of
the Company''s then current executive offices; (ii) if to the Company, at the
address and facsimile number of the Company''s then current executive offices;
or (iii) to such other addresses and to the attention of such other individuals
as any party shall have designated to the other parties by notice given in the
foregoing manner.
11. SEVERABILITY
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provisions shall be excluded from this
Agreement and the balance of this Agreement shall be interpreted as if such
provisions were so excluded and shall be enforceable in accordance with its
terms.
12. ENTIRE AGREEMENT
This Agreement constitutes the full and entire understanding and
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX.XXX, INC.
By Xxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, CEO
INVESTOR:
Xxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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