American DG Energy Inc. RESTRICTED STOCK PURCHASE AGREEMENT
Exhibit
10.13
This Agreement is made as of the 20th
day of February 2007 by and between American DG Energy Inc., a Delaware
corporation having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the “Company”), and Xxxxxxx X. Xxxxxxx, an individual
having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the
“Purchaser”).
The
Company desires to sell, and the Purchaser desires to purchase, 100,000 shares
of the Common Stock of the Company (the “Shares”). The Shares are subject to
repurchase by the Company if the Purchaser ceases to be an employee of, or
consultant, or director to the Company or any parent, subsidiary or affiliate of
the Company for any reason.
“Act” shall mean the
Securities Act of 1933, as amended from time to time, and the rules and
regulations thereunder.
“Change in Control”
shall mean (a) the acquisition in a transaction or series of transactions by any
person (such term to include anyone deemed a person under Section 13(d)(3) under
the Exchange Act), other than the Company or any of its subsidiaries, or any
employee benefit plan or related trust of the Company or any of its
subsidiaries, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors; provided a Change in
Control shall not occur solely as the result of an Initial Public Offering or
(b) the sale or other disposition of all or substantially all of the assets of
the Company in one transaction or series of related transactions.
“Common Stock” shall
mean the shares of Common Stock, par value $.001 per share, of the
Company.
“Company” shall have
the meaning set forth in the preamble to this Agreement.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended from time to time, and the
rules and regulations thereunder.
“Purchaser” shall have
the meaning set forth in the preamble to this Agreement.
“Initial Public
Offering” shall mean the consummation of the first fully underwritten,
firm commitment public offering pursuant to an effective registration statement
under the Act, other than on Forms S-4 or S-8 or their then equivalents,
covering the offer and sale by the Company of its equity securities, the
registration of the Company pursuant to Section 12(b) or (g) of the Exchange Act
or such other event as a result of or following which the Shares shall be listed
on Nasdaq, OTC or on any securities exchange on which the Shares are listed for
trading.
“Permitted Transferee”
shall mean any of the following to whom the Purchaser may subsequently transfer
Shares hereunder: the Purchaser’s spouse, children (natural or adopted),
stepchildren, or a trust for the sole benefit of any of such persons of which
the Purchaser is the settlor or any other affiliate of the
Purchaser.
“Repurchase” shall
have the meaning set forth in Section 6 of this Agreement.
“Restricted Shares”
shall initially mean all of the Shares that are not Vested Shares.
“Shares” shall have
the meaning set forth in the preamble to this Agreement.
“Termination Event”
shall mean the termination of the Purchaser’s status as an employee of, or
consultant, or director to the Company or any parent, subsidiary or affiliate of
the Company for any reason.
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“Vested Shares” shall
mean 25% of the
Shares one year after an Initial Public Offering and then 25% of the Shares on
each subsequent anniversary of the Initial Public Offering. All of the Shares
shall become Vested Shares upon a Change in Control prior to a termination
event.
(a) The
Purchaser is acquiring the Shares for his or her own account as principal, for
investment purposes only, and not with a view to, or for, resale or distribution
of all or any part of the Shares, and no other person has a direct or indirect
beneficial interest in such Shares.
(b) The
Purchaser acknowledges his or her understanding that the sale of the Shares is
intended to be exempt from registration under the Act, and, in furtherance
thereof, the Purchaser represents and warrants to and agrees with the Company
that the Purchaser has the financial ability to bear the economic risk of his or
her investment in the Shares, has adequate means for providing for his or her
current needs and contingencies and has no need for liquidity with respect to
his or her investment in the Shares.
(c) The
Purchaser has determined the Shares are a suitable investment for the Purchaser
and that at this time he or she can bear a complete loss of his or her
investment in the Shares.
(a) No
federal or state agency has passed upon the Shares or made any finding or
determination as to the fairness of this investment.
(b) There
is no established market for the Shares and no assurance has been given that any
public market for them will develop.
(c) The
Shares may not be sold, pledged or otherwise transferred, except as may be
permitted under the Act and applicable state securities laws pursuant to
registration or exemption therefrom; and accordingly, the Purchaser may be
required to bear the financial risks of an investment in the Shares for an
indefinite period of time.
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“The
transferability of this certificate and the shares of stock represented hereby
are subject to the restrictions, terms and conditions (including repurchase and
restrictions against transfers) contained in a certain Restricted Stock Purchase
Agreement between the Company and the holder of this certificate (a copy of
which is available at the offices of the Company for examination).
The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended (the “Act”), or any state securities or “blue sky” laws and
may not be offered, sold, transferred, hypothecated or otherwise assigned except
(1) pursuant to a registration statement with respect to such securities which
is effective under the Act; or (2) pursuant to an available exemption from
registration under the Act relating to the disposition of securities; and (3) in
accordance with applicable state securities and “blue sky” laws.”
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(d) Choice
of Law. Notwithstanding the place where this Agreement may be executed by any of
the parties hereto, all the terms and provisions hereof shall be construed in
accordance with and governed by the laws of the Commonwealth of Massachusetts,
excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of this agreement to the substantive law of
another jurisdiction. Any dispute which may arise out of or in connection with
this Agreement shall be adjudicated before a court located in Boston,
Massachusetts and the parties hereby submit to the exclusive jurisdiction of the
courts of the Commonwealth of Massachusetts located in Boston, Massachusetts and
of the federal courts in Boston, Massachusetts with respect to any action or
legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement or any acts or
omissions relating to the sale and purchase of the Shares, and each of the
Company and the Purchaser (including any Permitted Transferees) consents to the
service of process in any such action or legal proceeding by means of registered
or certified mail, return receipt requested, or by means of a recognized
overnight air courier service in care of the address set forth below or such
other address as each party shall furnish in writing to the other. In the event
any such action is brought, whether at law or in equity, then the prevailing
party shall be paid his, her or its reasonable attorneys’ fees, expenses and
disbursements arising out of such action. The parties hereby waive trial by jury
in any action or proceeding involving, directly or indirectly, any matter
(whether sounding in tort, contract, fraud or otherwise) in any way arising out
of or in connection with this Agreement or the purchase of the
Shares.
IN
WITNESS WHEREOF, the Company and the Purchaser have executed this Restricted
Stock Purchase Agreement as of the date first above written.
By:
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Name:
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Xxxx
X. Xxxxxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
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CEO
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