Exhibit 4.13
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of August 12,
1998, between AppNet Systems, Inc., a Delaware corporation (the "CORPORATION")
and Xxxxxx Xxxxxx (the "EMPLOYEE").
The Company and Employee desire to enter into an agreement pursuant to
which Employee will purchase, and the Company will sell, 50,000 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, 50,000 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 $25.00 and a promissory note in the
form of ANNEX A attached hereto in an aggregate principal amount of $5,250.00
(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"):
-2-
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 2nd Anniversary of this Agreement 75%
Date immediately following 2nd Anniversary of this
Agreement until 3rd Anniversary of this Agreement 50%
Date immediately following 3rd Anniversary of this
Agreement until 4th Anniversary of this Agreement 25%
Date immediately following 4th Anniversary of this
Agreement and thereafter 0%
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 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
-3-
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 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
-4-
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 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
-5-
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 AUGUST
12, 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 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
-6-
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 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.
-7-
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 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
-8-
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 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-
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
If to the Employee:
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
-10-
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.
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.
-11-
(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.
(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
-12-
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.
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/ XXXXXX XXXXXX
----------------------------------------
Xxxxxx Xxxxxx
-13-
