EXHIBIT 10.12
REPURCHASE AGREEMENT
This Repurchase Agreement (the "Agreement") dated as of September 15,
1997, is entered into by and between Outreach Communications Corporation, a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxxxx (the "Shareholder").
Capitalized terms not otherwise defined in this Agreement shall have the
meanings assigned to them in the attached Appendix or Exhibits hereto.
WHEREAS, as of the date of this Agreement, the Shareholder owns an
aggregate of 649,759 shares of the Company's Common Stock, $0.001 par value (the
"Common Stock");
WHEREAS, the Company desires to sell and issue shares of its Series A
Preferred Stock to certain investors (the "Investors"); and
WHEREAS, to encourage and facilitate such a Series A Preferred Stock
financing, the Shareholder has agreed to subject such shares to vesting
arrangements whereby a certain fraction of such shares shall vest according to
the terms of this Agreement.
In consideration of the foregoing and the agreements set forth below,
the parties agree with the Company as follows:
1. REPURCHASE RIGHT
----------------
1.1 Grant. The Company is hereby granted the right (the "Repurchase
-----
Right"), exercisable at any time during the thirty (30) day period following
the date Shareholder ceases for any reason to remain in Service (other than
as a result of Shareholder's death or any disability that will preclude
Shareholder from remaining in Service for at least 12 months), to repurchase
at the Purchase Price any portion of the Shares in which Shareholder is not,
at the time of his cessation of Service, vested in accordance with the
Vesting Schedule set forth on Exhibit I attached hereto (such shares to be
---------
hereinafter referred to as the "Unvested Shares").
1.2 Exercise of the Repurchase Right. The Repurchase Right shall be
--------------------------------
exercisable by written notice to Shareholder on or prior to the expiration
of the thirty (30) day exercise period. The notice shall indicate the number
of Unvested Shares to be repurchased and the date on which the repurchase is
to be effected, such date to be not more than thirty (30) days after the
date of such notice. The certificates representing the Unvested Shares to be
repurchased shall be delivered to the Company prior to the close of business
on the date specified for the repurchase. Concurrently with the receipt of
such stock certificates, the Company shall pay to Shareholder, in cash or
cash equivalents (including the cancellation of any purchase-money
indebtedness), an amount equal to the number of shares so repurchased times
the Purchase Price (appropriately adjusted for all splits, dividends,
combinations and recapitalizations).
1
1.3 Termination of the Repurchase Right. The Repurchase Right shall
-----------------------------------
terminate with respect to any Unvested Shares for which it is not timely
exercised under Section 1.2 herein. In addition, the Repurchase Right shall
terminate and cease to be exercisable with respect to (i) any and all Shares
in which Shareholder vests in accordance Section 1.4 herein or with the
vesting schedule (the "Vesting Schedule") set forth on Exhibit I attached
hereto, or (ii) any Unvested Shares owned by Shareholder if Shareholder's
cessation of Service results from Shareholder's death or any disability that
will preclude Shareholder from remaining in Service for a period of at least
12 months. All Shares as to which the Repurchase Right lapses shall,
however, remain subject to the Market Stand-Off provisions as set forth
herein.
1.4 Change in Control. Immediately prior to the consummation of any Change
-----------------
in Control, the Repurchase Right shall automatically lapse with respect to
all of the then Unvested Shares, provided, that the Repurchase Right shall
not so lapse in the event that the acquiring entity or its parent (the
"Acquiror") in such Change in Control shall assume all of the obligations
and liabilities of the Company pursuant to this Agreement and continue to
employ Shareholder such that Shareholder shall continue to vest in the
Unvested Shares based upon his continued Service with the Acquiror.
Shareholder shall acquire a vested interest in, and the Company's Repurchase
Right will accordingly lapse with respect to, all of the Unvested Shares
upon Shareholder's Involuntary Termination from Service in connection with,
or within the twelve month period following, the Change in Control.
"Involuntary Termination" shall mean the termination of Shareholder's
Service which occurs by reason of: Shareholder's involuntary dismissal or
discharge by the Company for reasons other than Misconduct, or Shareholder's
voluntary resignation following (A) a change in his position with the
Company which materially reduces his level of responsibility, (B) a
reduction in his level of compensation (including base salary and target
bonus), (C) a relocation of Shareholder's place of employment by more than
thirty (30) miles, or (D) the inability of Shareholder to remain actively
employed due to physical or mental disability or other medical condition,
provided and only if (in the case of (A) through (C)) such change, reduction
or relocation is effected by the Company without Shareholder's consent.
"Misconduct" shall mean persistent failure of Shareholder to perform the
lawful duties and responsibilities assigned by the Acquiror which are not
cured within a reasonable time following Shareholder's receipt of written
notice of such failure from the Acquiror, the commission of any act of
fraud, embezzlement or dishonesty by Shareholder, any unauthorized use or
disclosure by such person of confidential information or trade secrets of
the Company, or any other intentional misconduct by such person adversely
affecting the business or affairs of the Company in a material manner. The
foregoing definition shall not be deemed to be inclusive of all the acts or
omissions which the Company may consider as grounds for the dismissal or
discharge of any person in the Service of the Company.
1.5 Recapitalization. Any new, substituted or additional securities or other
----------------
property (including cash paid other than as a regular cash dividend), which
is by reason of any Recapitalization distributed with respect to the Shares,
shall be immediately subject to the Repurchase Right, but only to the extent
the Shares are at the time covered by such right.
2
Appropriate adjustments to reflect such distribution shall be made to the
number and/or class of Shares subject to this Agreement and to the price per
share to be paid upon the exercise of the Repurchase Right in order to
reflect the effect of any such Recapitalization upon the Company's capital
structure; provided, however, that the aggregate Purchase Price shall remain
--------
the same.
2. Reissuance of Certificates. Upon receipt by the Company of each Certificate
--------------------------
representing the Shares, the Company shall issue a new duly executed certificate
representing the Shares that shall include each of the legends required by the
Purchase Agreement and this Agreement. Each such certificate representing
Unvested Shares shall be held in escrow in accordance with the provisions of
this Agreement.
3. Stockholder Rights. Until such time as the Company exercises the Repurchase
------------------
Right pursuant to this Agreement, Shareholder (or any successor in interest)
shall have all the rights of a stockholder (including voting, dividend and
liquidation rights) with respect to the Shares, including the Shares held in
escrow hereunder, subject, however, to the transfer restrictions set forth
herein and in any other agreements between or among the Company, the Investors
or other stockholders of the Company to which Shareholder is a party.
4. Transfer Restrictions.
----------------------
4.1 Restriction on Transfer. Shareholder shall not transfer, assign,
-----------------------
encumber or otherwise dispose of any of the Shares in contravention of the
Market Stand-Off under Section 4.4 or the Company's Repurchase Right under
Section 1. Such restrictions on transfer, however, shall not be applicable
to (i) a gratuitous transfer of the Shares made to Shareholder's spouse or
issue, including adopted children, or to a trust for the exclusive benefit
of Shareholder or Shareholder's spouse or issue, provided and only if
--------------------
Shareholder obtains the Company's prior written consent to such transfer or
(ii) a transfer of title to the Shares effected pursuant to Shareholder's
will or the laws of intestate succession.
4.2 Transferee Obligations. Each person (other than the Company) to whom
----------------------
the Shares are transferred by means of one of the permitted transfers
specified in Section 4.1 must, as a condition precedent to the validity of
such transfer, acknowledge in writing to the Company that such person is
bound by the provisions of this Agreement and that the transferred shares
are subject to (i) the Company's Repurchase Right granted hereunder and
(ii) the market stand-off provisions of Section 4.4, to the same extent
such shares would be so subject if retained by Shareholder.
Definition of Owner. For purposes of Section 4 of this Agreement, the term
-------------------
"Owner" shall include Shareholder and all subsequent holders of the Shares who
derive their chain of ownership through a permitted transfer from Shareholder in
accordance with Section 4.1.
3
4.3 Market Stand-Off.
----------------
(a) In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the 1933 Act, Owner shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the purchase of, or otherwise dispose
or transfer for value or otherwise agree to engage in any of the foregoing
transactions with respect to, any Shares without the prior written consent of
the Company or its underwriters. Such limitations shall be in effect for such
period of time from and after the effective date of such registration statement
as may be requested by the Company or such underwriters; provided, however, that
--------
in no event shall such period exceed one hundred-eighty (180) days.
(b) In the event of any stock dividend, stock split,
recapitalization or other change affecting the Company's outstanding Common
Stock effected as a class without receipt of consideration, any new, substituted
or additional securities distributed with respect to the Shares shall be
immediately subject to the provisions of this Section 4.3, to the same extent
the Shares are at such time covered by such provisions.
(c) In order to enforce the limitations of this Section 4.3,
the Company may impose stop-transfer instructions with respect to the Shares
until the end of the applicable stand-off period.
4.4 Restrictive Legends. In addition to any other legends otherwise
-------------------
required, the stock certificates for the Shares shall be endorsed with the
following restrictive legend:
"A portion of the shares represented by this certificate are
unvested and subject to certain repurchase rights granted to the Company and
accordingly may not be sold, assigned, transferred, encumbered, or in any manner
disposed of except in conformity with the terms of a written agreement between
the Company and the registered holder of the shares (or the predecessor in
interest to the shares). A copy of such agreement is maintained at the Company's
principal corporate offices."
5. Escrow.
------
5.1 Deposit. The certificate(s) for the Shares that are subject to the
-------
Repurchase Right shall promptly be deposited in escrow with the Company
to be held in accordance with the provisions of this Section 5. Each
deposited certificate shall be accompanied by two duly-executed
Assignments Separate from Certificate in the form of Exhibit II. The
----------
deposited certificates, together with any other assets or securities
from time to time deposited with the Company pursuant to the
requirements of this Agreement, shall remain in escrow until such time
or times as the certificates (or other assets and securities) are to be
released or otherwise surrendered for cancellation in accordance with
Section 5.3. Upon delivery of the certificates (or other assets and
securities) to the Company, Shareholder shall be issued a receipt
acknowledging the number of Shares (or other assets and securities)
delivered in escrow.
4
5.2 Recapitalization/Reorganization. Any new, substituted or additional
-------------------------------
securities or other property which is by reason of any Recapitalization
or Reorganization distributed with respect to the Shares shall be
immediately delivered to the Company to be held in escrow under this
Section 5, but only to the extent the Shares are at the time subject to
the escrow requirements hereunder. However, all regular cash dividends
on the Shares (or other securities at the time held in escrow) shall be
paid directly to Shareholder and shall not be held in escrow.
5.3 Release/Surrender. The Shares, together with any other assets or
-----------------
securities held in escrow hereunder, shall be subject to the following
terms relating to their release from escrow or their surrender to the
Company for repurchase and cancellation:
(a) Should the Company elect to exercise the Repurchase
Right with respect to any Unvested Shares, then the escrowed certificates for
those Unvested Shares (together with any other assets or securities attributable
thereto) shall be surrendered to the Company concurrently with the payment to
Shareholder of an amount equal to the aggregate Purchase Price for such Unvested
Shares, and Shareholder shall cease to have any further rights or claims with
respect to such Unvested Shares (or other assets or securities attributable
thereto).
(b) Should the Company elect not to exercise the
Repurchase Right with respect to any Unvested Shares held at the time in escrow
hereunder, then the escrowed certificates for those shares (together with any
other assets or securities attributable thereto) shall be immediately released
to Shareholder.
(d) As the Shares (or any other assets or securities
attributable thereto) vest in accordance with the Vesting Schedule, the
certificates for those vested shares (as well as all other vested assets and
securities) shall be released from escrow upon Shareholder's request, but not
more frequently than once every three (3) months.
(e) All Shares that are vested (and any other vested
assets and securities attributable thereto) shall be released from the escrow
within thirty (30) days after Shareholder's cessation of Service (subject to any
right of first refusal outstanding as of the time of Shareholder's cessation of
Service).
6. Miscellaneous Provisions.
------------------------
6.1 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be
deemed effectively given upon personal delivery to the party to be
notified or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party
to be notified at the address indicated for such party on the signature
page hereof, or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties.
6.2 Further Actions. The parties hereby agree to take whatever
---------------
additional actions and execute whatever additional documents they may
deem necessary or advisable in order to
5
carry out or effect one or more of the obligations or restrictions
imposed on either of them or on the Shares pursuant to the provisions of
this Agreement.
6.3 Amendments and Waivers. This Agreement represents the entire
----------------------
understanding of the parties with respect to the subject matter hereof
and supersedes all previous understandings, whether written or oral.
This Agreement may only be amended with the written consent of the
Shareholder and the Company, or the successors or assigns of the
foregoing, and no oral waiver or amendment shall be effective under any
circumstances whatsoever.
6.4 Governing Law. This Agreement shall be governed by, and construed
-------------
in accordance with, the laws of the State of Texas without resort to
that State's conflict-of-laws rules.
6.5 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
6.6 Successors and Assigns. The terms and provisions of this Agreement
----------------------
shall inure to the benefit of, and be binding upon, the Company and its
successors and assigns and upon Shareholder, Shareholder's permitted
assigns and legal representatives, heirs and legatees of Shareholder's
estate, whether or not any such person shall have become a party to this
Agreement and have agreed in writing to join herein and be bound by the
terms hereof.
6.7 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.8 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
OUTREACH COMMUNICATIONS CORPORATION
By: /s/
------------------------------------------
Title: CEO
---------------------------------------
Address: 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
SHAREHOLDER:
/s/ Xxxxx Xxxxxxxxx
---------------------------------------------
Xxxxx Xxxxxxxxx
Address: 00000 Xxxxxxx Xxxxx Xxxxx
--------------------------------
Xxxxxx, XX 00000
--------------------------------
--------------------------------
7
EXHIBIT I
---------
VESTING SCHEDULE
That number of the Shares shall be vested as of the date of execution hereof
as is indicated below. The remaining Shares shall be unvested as of the date of
execution hereof and shall be subject to repurchase by the Company at the
Purchase Price (the "Unvested Shares"). Shareholder shall acquire a vested
interest in and the Company's Repurchase Right will lapse with respect to the
total number of Unvested Shares as of the date of this Agreement on the
following basis:
Shareholder: Xxxxx Xxxxxxxxx
Total Number of Shares: 649,759
Number of Shares Vested
as of Date of this Agreement: 216,586
Total Unvested Shares: 433,173
Vesting Schedule: Total Unvested Shares shall vest (and the
Company's Repurchase Right shall lapse) on
the basis of one forty-second (1/42) per
month on the 15th day of each month, with
vesting to begin as of September 15, 1997 and
to continue until March 15, 2001.
EXHIBIT II
----------
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED [Name] hereby sells, assigns and transfers unto Outreach
Communications Corporation (the "Company") __________________________
(______________) shares of the Common Stock of the Company standing in his/her
name in the books of the Company represented by Certificate Number(s)
_____________ herewith and does hereby irrevocably constitute and appoint
_____________________ its attorney-in-fact to transfer such stock on the books
of the Company with full power of substitution in the premises.
Dated: _______________
-------------------------------------
This Assignment Separate from Certificate was executed in conjunction with the
terms of the Repurchase Agreement by and between the above assignor and Outreach
Communications Corporation dated September __, 1997.
APPENDIX
--------
The following definitions shall be in effect under the Agreement:
Agreement shall mean this Stock Repurchase Agreement.
---------
Board shall mean the Company's Board of Directors.
-----
Code shall mean the Internal Revenue Code of 1986, as amended.
----
Common Stock shall mean the Company's common stock.
------------
Change in Control shall mean:
-----------------
a) The consummation of a merger or consolidation of the Company with or
into another entity or any other corporate reorganization, if more
than 50% of the combined voting power of the continuing or surviving
entity's securities outstanding immediately after such merger,
consolidation or other reorganization is owned by persons who were
not stockholders of the Company immediately prior to such merger,
consolidation or other reorganization; or
b) The sale, transfer or other disposition of all or substantially all
of the Company's assets.
A transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company's incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the company's securities immediately before such transaction.
Company shall mean Outreach Communications Corporation., a Delaware corporation.
-------
1933 Act shall mean the Securities Act of 1933, as amended.
--------
Purchase Price shall mean $.01 per share.
--------------
Recapitalization shall mean any stock split, stock dividend, recapitalization,
----------------
combination of shares, exchange of shares or other change affecting the
Company's outstanding Common Stock as a class without the Company's receipt of
consideration.
Reorganization shall mean any of the following transactions:
--------------
(a) a merger or consolidation in which the Company is not the surviving
entity,
(b) a sale, transfer or other disposition of all or substantially all of
the Company's assets,
2
(c) a reverse merger in which the Company is the surviving entity but in
which the Company's outstanding voting securities are transferred in
whole or in part to a person or persons different from the persons
holding those securities immediately prior to the merger, or
(d) any transaction effected primarily to change the state in which the
Company is incorporated or to create a holding company structure.
SEC shall mean the Securities and Exchange Commission.
---
Service shall mean the provision of services to the Company (or any Parent or
-------
Subsidiary) by a person in his or her capacity as an employee, subject to the
control and direction of the employer entity as to both the work to be performed
and the manner and method of performance, as a non-employee member of the Board
of Directors or as a consultant.
Shares shall mean 649,759 shares of the Common Stock owned by Shareholder.
------
3
