EXHIBIT 10.8
XXXXXXX.XXX, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is made between
_________________("Purchaser") and xxxxxxx.xxx, inc., a Delaware corporation
(the "Company"), as of September __, 1999.
In consideration of the mutual covenants and representations herein set
forth, the Company and Purchaser hereby agree as follows:
1. Purchase and Sale of Shares. Purchaser hereby purchases from the
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Company, and the Company hereby issues and sells to Purchaser, an aggregate of
__________ shares of Common Stock (as hereinafter defined) (the "Shares"), at a
price of $0.10 per share, or an aggregate purchase price of $____________ (the
"Aggregate Purchase Price"). The Company shall, promptly after execution of
this Agreement, issue a certificate representing the Shares registered in the
name of Purchaser.
2. Adjustments. All references to the number of Shares and the purchase
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price of the Shares in this Agreement shall be appropriately adjusted to reflect
any further stock split, stock dividend or other change in the Shares which may
be made by the Company after the date of this Agreement.
3. Definitions. As used herein, the following definitions shall apply:
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(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" means the Common Stock of the Company.
4. Ownership, Voting Rights, Duties. This Agreement shall not affect in
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any way the ownership, voting rights or other rights or duties of Purchaser,
except as specifically provided herein. Purchaser shall enjoy rights as a
shareholder, including the right to vote the Shares independent of voting
positions held by Autodesk, Inc. or any other shareholder of the Company, until
such time as Purchaser disposes of the Shares.
5. Restrictive Legends; Stop-Transfer Orders; Market Standoff.
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(a) Legends. Purchaser understands and agrees that the Company shall
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cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE
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OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND OTHER RESTRICTIONS FOR THE BENEFIT OF THE
ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN A RESTRICTED STOCK PURCHASE
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES,
A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.
SUCH TRANSFER RESTRICTIONS AND OTHER RESTRICTIONS ARE BINDING ON
TRANSFEREES OF THESE SHARES.
(b) Stop-Transfer Notices. Purchaser agrees that, in order to ensure
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compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Market Standoff. Purchaser hereby agrees that if so requested by
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the Company or any representative of the underwriters in connection with any
registration of the offering of any securities of the Company under the
Securities Act, Purchaser shall not sell or otherwise transfer any Shares or
other securities of the Company during such period as the Company and the
representatives of the underwriters may request (not to exceed 180 days)
following the effective date of any registration statement of the Company filed
under the Securities Act for an underwritten public offering. Purchaser's
obligation shall also be subject to equal and pro rata treatment with any other
shareholder of the Company that is released early from such market standoff
obligation. The Company may impose stop-transfer instructions with respect to
Shares subject to the foregoing restrictions until the end of such market
standoff period.
(d) Refusal to Transfer. The Company shall not be required (i) to
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transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
6. Representations.
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(a) Investment Representation. Purchaser represents to the Company
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the following:
(i) Purchaser either (1) has a preexisting personal or business
relationship with the Company or any of its officers, directors or controlling
persons, or (2) by reason of Purchaser's business or financial experience or the
business or financial experience of Purchaser's professional advisors who are
unaffiliated with and who are not compensated by the Company or any affiliate or
selling agent of the Company, directly or indirectly, could be reasonably
assumed to have the capacity to protect Purchaser's own interests in connection
with the purchase of the Shares.
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(ii) Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Shares. Purchaser is
acquiring these Shares for investment for Purchaser's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(iii) Purchaser acknowledges and understands that the Shares
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Purchaser's investment intent as expressed herein. In this connection,
Purchaser understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Purchaser's representation was predicated solely upon a present intention to
hold these Shares for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Shares, or for a period of one year or any other fixed
period in the future. Purchaser further understands that the Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. Purchaser further acknowledges
and understands that the Company is under no obligation to register the Shares.
Purchaser understands that the certificate evidencing the Shares shall be
imprinted with a legend which prohibits the transfer of the Shares unless they
are registered or such registration is not required in the opinion of counsel
satisfactory to the Company, a legend enumerating the restrictions on transfer
of the Shares, and any other legend required under applicable state securities
laws.
(iv) Purchaser understands that the Shares are restricted
securities within the meaning of Rule 144, promulgated under the Securities Act,
which limits the sale of Shares in a public market transaction. Purchaser also
understands that the exemption from registration under Rule 144 shall not be
available, in any event, for at least one (1) year from the date of purchase of
and actual payment for the Shares, and even then shall not be available unless
(A) a public trading market then exists for the Common Stock, (B) adequate
information concerning the Company is then available to the public, and (C)
other terms and conditions of Rule 144 are complied with. Purchaser understands
that there can be no assurance that the requirements of Rule 144 shall be met,
or that the Shares shall ever be eligible for sale.
(v) Purchaser further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption shall be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the Securities and Exchange Commission has expressed
its opinion that persons proposing to sell private placement securities other
than in a registered offering and otherwise than pursuant to Rule 144 shall have
a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their own
risk. Purchaser understands that no assurances can be given that any such other
registration exemption shall be available in such event.
(b) Tax Representations. Purchaser has reviewed with its own
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tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions
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contemplated by this Agreement. Purchaser is relying solely on such advisors and
not on any statements or representations of the Company or any of its agents.
Purchaser understands that it (and not the Company) shall be responsible for its
own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
7. Additional Actions. The parties shall execute such further instruments
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and take such further action as may reasonably be necessary to carry out the
intent of this Agreement.
8. Notices. All notices and other communications required or permitted
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hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given (a) five (5) days after deposit with the U.S. Postal
Service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand, or (c) one business day after the business day of deposit
with Federal Express or similar overnight courier, freight prepaid, and shall be
addressed (i) if to Purchaser, at Purchaser's address as set forth beneath
Purchaser's signature to this Agreement, or at such other address as Purchaser
shall have furnished to the Company in writing, (ii) if to the Company, to
xxxxxxx.xxx, inc., at Company's address as set forth beneath Company's signature
to this Agreement, or at such other address as the Company shall have furnished
to Purchaser, or (iii) if to the Escrow Agent, to the Corporate Secretary of
xxxxxxx.xxx, inc. at Company's address as set forth beneath Company's signature
to this Agreement, or at such other address as the Escrow Agent shall have
furnished to the parties.
9. Assignment. The Company may assign its rights and delegate its duties
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under this Agreement. If any such assignment or delegation requires consent of
the California Department of Corporations, the parties agree to cooperate in
requesting such consent. This Agreement shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Purchaser, Purchaser's heirs,
executors, administrators, successors and assigns.
10. Entire Agreement; Amendment. This constitutes the full and entire
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understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought.
11. Arbitration. At the option of either party, any and all disputes or
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controversies, whether of law or fact, and of any nature whatsoever arising from
or respecting this agreement, unless otherwise expressly provided herein, shall
be decided by arbitration by the American Arbitration Association in accordance
with the rules and regulations of that Association.
(a) The arbitrators shall be selected as follows: In the event the
Company and Purchaser agree on one arbitrator, the arbitration shall be
conducted by such arbitrator. In the event the Company and Purchaser do not so
agree, the Company and Purchaser shall each select one independent, qualified
arbitrator and these two arbitrators shall select a third arbitrator. The
Company reserves the right to reject any individual arbitrator who shall be
employed by or affiliated with a competing organization.
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(b) Arbitration shall take place in San Francisco County, California,
or any other location mutually agreeable to the parties. At the request of
either party, arbitration proceedings shall be conducted in secrecy. In such
case all documents, testimony, and records shall be received, heard, and
maintained by the arbitrators in secrecy under seal, available for inspection
only by the Company and Purchaser and their respective attorneys and their
respective experts who shall agree in advance and in writing to receive all such
information confidentially and to maintain such information in secrecy until
such information shall become generally known. The arbitrator, who shall act by
majority vote, shall be able to decree any and all relief of an equitable
nature, including but not limited to such relief as a temporary restraining
order, a temporary or a permanent injunction, or both, and shall also be able to
award damages, with or without an accounting, costs, and reasonable attorneys'
fees. The decree or judgment of an award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
(c) Reasonable notice of the time and place of arbitration shall be
given to all persons, other than the parties, as shall be required by law, in
which case such persons or their authorized representatives shall have the right
to attend and participate in all the arbitration hearings to the extent and in
such manner as the law shall require.
12. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of California as they apply to
contracts entered into and wholly to be performed within such state.
13. Advice of Counsel; Board Interpretations. Purchaser has reviewed this
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Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Agreement and fully understands all provisions
hereof. Purchaser hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board upon any questions arising under this
Agreement.
14. Waiver. The failure of either party hereto to enforce any provision
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or provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, nor prevent that party thereafter from
enforcing each and every other provision of this Agreement. The rights granted
both parties herein are cumulative and shall not constitute a waiver of either
party's right to assert all other legal remedies available to it under the
circumstances.
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IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set
forth above.
"COMPANY"
_____________________________________
Xxxx Xxxx
President and Chief Executive Officer
xxxxxxx.xxx, inc.
"PURCHASER"
_____________________________________
Name:________________________________
