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EXHIBIT 10.3
OPTICAL MICRO-MACHINES
FOUNDERS' RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made this 2nd day of July, 1997 between Optical
Micro-Machines, a California corporation (the "Company") and Xxxx Xxxxxx (the
"Purchaser").
In consideration of the mutual covenants and representations herein set
forth, the Company and the Purchaser agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the Purchaser and
the Purchaser hereby agrees to purchase an aggregate of 720,000 shares of the
Company's Common Stock (the "Shares"), at the price of $0.001 per Share for an
aggregate purchase price of $720.00.
2. Payment of Purchase Price. The purchase price for the Shares shall be
paid by delivery to the Company at the time of execution of this Agreement of a
check in the amount of the purchase price.
3. Limitations on Transfer. In addition to any other limitation on
transfer created by applicable securities laws, Purchaser shall not assign,
encumber or dispose of any interest in the Shares while the Shares are subject
to the Company's right of first refusal except in compliance with the provisions
of this Section 3.
(a) Repurchase Option. In the event of the voluntary or
involuntary termination of the employment or consulting relationship of
Purchaser with the Company for any reason, with or without cause (including
death or disability) (a "Termination"), the Company shall, upon the date of such
termination, have an irrevocable, exclusive option (the "Repurchase Option") for
a period of ninety (90) days from such date to repurchase from Purchaser, at the
original purchase price per Share (the "Repurchase Price"), all or any portion
of the Shares held by Purchaser as of such date, to the extent such Shares have
not yet been released from the Company's Repurchase Option. The Repurchase
Option shall be exercised by the Company by written notice to Purchaser or his
executor and, at the Company's option, (i) by delivery to the Purchaser or his
executor, with such Notice, of a check in the amount of the purchase price for
the Shares being repurchased, or (ii) in the event the Purchaser is indebted to
the Company, by cancellation by the Company of an amount of such indebtedness
equal to the Repurchase Price for the Shares being repurchased, or (iii) by a
combination of (i) and (ii) so that the combined payment and cancellation of
indebtedness equals such Repurchase Price. Upon delivery of such notice and
payment of the Repurchase Price in any of the ways described above, the Company
shall become the legal and beneficial owner of the Shares being repurchased and
all rights and interest therein or related thereto, and the Company shall have
the right to transfer to its own name the number of Shares being repurchased by
the Company, without further action by Purchaser.
If a Termination occurs at any time after the date hereof
and prior to June 30, 1998, the Repurchase Option shall apply to 100% of the
Shares. On June 30, 1998, 12/48ths of the shares shall be released from the
Repurchase Option and 1/48th of the Shares shall be released from
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the Repurchase Option each full calendar month thereafter, provided in each case
the Purchaser is an employee or consultant of the Company on the date of each
said release. Fractional shares shall be rounded to the nearest whole share.
(b) Right of First Refusal. Before any Shares may be sold or
transferred (including transfer by operation of law), such Shares shall first be
offered to the Company (the "Right of First Refusal").
(i) In the event the Purchaser wishes to sell the Shares,
Purchaser shall deliver a notice ("Notice") to the Company stating (A) his bona
fide intention to sell or transfer such Shares, (B) the number of such Shares to
be sold or transferred, (C) the price for which he proposes to sell or transfer
such Shares, and (D) the name of the proposed purchaser or transferee.
(ii) Within thirty (30) days after receipt of the Notice,
the Company or its assignee may elect to purchase all or none of the Shares to
which the Notice refers, at the price per Share specified in the Notice. The
purchase of the Shares in either such event shall occur at a closing held at the
Company's principal office at a mutually agreed upon time which in no event
shall be more than thirty (30) days following the end of the time period in
which the Company had to elect to purchase such Shares.
(iii) If all of the Shares to which the Notice refers are
not elected to be purchased, as provided in Section 3(b) hereof, Purchaser may
sell the Shares to any person named in the Notice at the price specified in the
Notice or at a higher price, provided that such sale or transfer is consummated
within sixty (60) days of the date of said Notice to the Company, and provided,
further, that any such sale is in accordance with all the terms and conditions
hereof.
(c) Termination of Restrictions. Notwithstanding the provisions
of Section 3(b) above, the Company's Right of First Refusal shall terminate
immediately as to all Shares upon the occurrence of the first to occur of the
following events:
(i) the acquisition of the Company by another entity by
means of the merger or consolidation of the Company with or into another
corporation in which the stockholders of the Company own less that 50% of the
voting securities of the surviving entity,
(ii) the sale of all or substantially all of the assets of
the Company, or
(iii) the date upon which a public market exists for the
Company's capital stock (or any other stock issued to purchasers in exchange for
the Shares purchased under this Agreement). For the purpose of this Agreement, a
"Public Market" shall be deemed to exist if (i) such stock is listed on a
national securities exchange (as that term is used in the Securities Exchange
Act of 1934) or (ii) such stock is traded on the over-the-counter market and
prices are published daily on business days in a recognized financial journal.
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(d) Assignment. Whenever the Company shall have the right to
purchase Shares under this Section 3, the Company may designate and assign one
or more employees, officers, directors or shareholders of the Company or other
persons or organizations to exercise all of the Company's purchase rights under
this Agreement and purchase all of such Shares; provided that if the fair market
value of the Shares to be purchased on the date of such designation or
assignment (the "Repurchase FMV") exceeds the purchase price of the Shares
(determined as described hereinabove) to be purchased, then each such designee
or assignee shall pay the Company cash equal to the difference between the
Repurchase FMV and the purchase price of the Shares which such designee or
assignee shall have the right to purchase.
(e) Exempt Transfers. The provisions of this Section 3 shall not
apply to a transfer of any Shares by Purchaser, either during his lifetime or on
death by will or intestacy to his ancestors, descendants or spouse, or any
custodian or trustee for the account of Purchaser or Purchaser's ancestors,
descendants or spouse; provided, in each such case that the transferee shall
receive and hold such Shares subject to all of the provisions of this Section 3
and there shall be no further transfer of such Shares except in accordance
herewith.
4. Standoff Agreement. Purchaser agrees, in connection with the
Company's initial public offering of its equity securities, not to sell, make
any short sale of, loan, grant any option for the purchase of or otherwise
dispose of any Shares (other than those included in the registration, if any)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed one hundred eighty (180)
days) from the effective date of such registration as may be requested by the
Company or such underwriters; provided, that the officers and directors of the
Company who own stock of the Company also agree to such restrictions.
5. No Transfer Except in Compliance with the Restrictions Herein. The
Company shall not be required (i) to transfer on its books any Shares which
shall have been sold or transferred in violation of any of the provisions set
forth in this Agreement, or (ii) to treat as owner of such Shares or to accord
the right to vote as such owner or to pay dividends to any transferee to whom
such Shares shall have been so transferred. Purchaser shall not sell, transfer,
pledge, hypothecate or otherwise dispose of any shares which remain subject to
the restrictions on transfer set forth in Section 3 hereof.
6. Legends. All certificates representing any of the Shares subject to
the provisions of this Agreement shall have endorsed thereon the following
legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS OF FIRST REFUSAL AS SET FORTH IN
AN AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED HOLDER, A COPY OF WHICH
IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION."
(b) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
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OR HYPOTHECATED IN THE ABSENCE OF ANY EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
(c) Any legend required to be placed thereon by the applicable
blue sky laws of any state.
7. Escrow.
(a) The Shares issued under this Agreement shall be held by an
escrow holder designated by the Company (the "Escrow Holder"), along with a
stock assignment executed by the Purchaser in blank, until the expiration of the
Company's Right of First Refusal with respect to such Shares as set forth above.
(b) The Escrow Holder is hereby directed to permit transfer of
the Shares only in accordance with this Agreement or instructions signed by both
parties. In the event further instruc tions are desired by the Escrow Holder, he
shall be entitled to rely upon directions executed by a majority of the
authorized number of the Company's Board of Directors. The Escrow Holder shall
have no liability for any act or omission hereunder while acting in good faith
in the exercise of his own judgment.
(c) If the Company or any assignee exercises its Right of First
Refusal hereunder, the Escrow Holder, upon receipt of written notice of such
exercise from the proposed transferee, shall take all steps necessary to
accomplish such transfer.
(d) When the Right of First Refusal have been exercised or expire
unexercised or a portion of the Shares has been released from the provisions of
Section 3 hereof, upon Purchaser's request the Escrow Holder shall promptly
cause a new certificate to be issued for such released Shares and shall deliver
such certificate to the Purchaser.
(e) Subject to the terms hereof, the Purchaser shall have all the
rights of a shareholder with respect to such Shares while they are held in
escrow, including without limitation, the right to vote the Shares and receive
any cash dividends declared thereon. If, from time to time during the term of
the provisions of Section 3, there is (i) any stock dividend, stock split or
other change in the Shares, or (ii) any merger or sale of all or substantially
all of the assets or other acquisition of the Company, any and all new,
substituted or additional securities to which the Purchaser is entitled by
reason of his ownership of the Shares shall be immediately subject to this
escrow, deposited with the Escrow Holder and included thereafter as "Shares" for
purposes of this Agreement and the Company's Right of First Refusal.
8. Investment Representations. In connection with the purchase of the
Shares, the Purchaser shall, concurrently with the purchase of the Shares,
deliver to the Company his Investment Representation Statement attached hereto
as Exhibit B.
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9. Adjustment for Stock Split. All references to the number of Shares
and the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
10. Tax Consequences. The Purchaser has reviewed with the Purchaser's
own tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement (including any
tax consequences that may result under recently enacted tax legislation). The
Purchaser is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Purchaser understands
that the Purchaser (and not the Company) shall be responsible for the
Purchaser's own tax liability that may arise as a result of this investment or
the transactions contemplated by this Agreement.
11. Termination of Employment or Consulting Relationship. Purchaser
understands and acknowledges that Purchaser's employment or consulting
relationship with the Company is at the will of either party and that nothing in
this Agreement, shall confer any right upon Purchaser with respect to
continuation of employment or a consulting relationship by the Company, nor
shall it interfere in any way with his right or the Company's right to terminate
his employment or consulting relationship at any time, with or without cause.
This Agreement does not constitute an express or implied promise of continued
employment or consulting relationship for any period.
12. General Provisions.
(a) Governing Law. This Agreement shall be governed by the laws
of the State of California. This Agreement represents the entire agreement
between the parties with respect to the purchase of Common Stock by the
Purchaser and may only be modified or amended in writing signed by both parties.
(b) Notices. Any notice, demand or request required or permitted
to be given by either the Company or the Purchaser pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally or deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the parties at the addresses of the parties set forth at the end of
this Agreement or such other address as a party may request by notifying the
other in writing.
Any notice to the Escrow Holder shall be sent to the Company's
address with a copy to the other party not sending the notice.
(c) Assignment. The rights and benefits of the Company under this
Agreement shall be transferable to any one or more persons or entities, and all
covenants and agreements hereunder shall inure to the benefit of, and be
enforceable by the Company's successors and assigns. The rights and obligations
of the Purchaser under this Agreement may only be assigned with the prior
written consent of the Company.
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(d) Waiver. Either party's failure to enforce any provision 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.
(e) Additional Actions. The Purchaser agrees upon request to
execute any further documents or instruments necessary or desirable to carry out
the purposes or intent of this Agreement.
(f) Arbitration. At the option of either party, any and all
disputes or controversies, whether of law or in equity, 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.
(i) 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.
(ii) Arbitration shall take place at Palo Alto,
California, or any other location mutually agreeable to the parties. At the
request of either party, arbitration proceedings will 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 the 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 arbitrators, 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.
(iii) 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first set forth above.
OPTICAL MICRO-MACHINES PURCHASER:
a California corporation
By: /s/ Xxxxx Xxxxxx /s/ Xxxx Xxxxxx
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Xxxxx Xxxxxx, Chief Xxxx Xxxxxx, President
Financial Officer Address: 0000 Xxxxx Xxxxx Xxxxx,
Xxxxxx, XX 00000
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CONSENT OF SPOUSE
I, Xxxxxx Xxxxxx, spouse of Xxxx Xxxxxx have read and approve the
foregoing Agreement. In consideration of granting of the right to my spouse to
purchase shares of Optical Micro-Machines, as set forth in the Agreement, I
hereby appoint my spouse as my attorney-in-fact in respect to the exercise of
any rights under the Agreement and agree to be bound by the provisions of the
Agreement insofar as I may have any rights in said Agreement or any shares
issued pursuant thereto under the community property laws of the state of
California or similar laws relating to marital property in effect in the state
of our residence as of the date of the signing of the foregoing Agreement.
Dated: July __, 1997
Signature: /s/ X. Xxxxxx
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign
and transfer unto ___________________________________________ (__________)
shares of the Common Stock of Optical Micro-Machines, standing in my name of the
books of said corporation represented by Certificate No. _____ herewith and do
hereby irrevocably constitute and appoint _____________________________ to
transfer the said stock on the books of the within named corporation with full
power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted
Stock Purchase Agreement between________________________ and the undersigned
dated ______________, 19__.
Dated: _______________, 19__
Signature:
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER : XXXX XXXXXX
COMPANY : OPTICAL MICRO-MACHINES
SECURITY : COMMON STOCK
AMOUNT : 72,000 SHARES
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am sufficiently aware of the Company's business affairs and
financial condition to reach an informed and knowledgeable decision to acquire
the Securities. I am purchasing these Securities for my own account for
investment purposes only and not with a view to, or for the resale in connection
with, any "distribution" thereof for purposes of the Securities Act of 1933, as
amended (the "Securities Act").
(b) I understand that the Securities 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 my
investment intent as expressed herein. In this connection, I understand that, in
the view of the Securities and Exchange Commission (the "SEC"), the statutory
basis for such exemption may be unavailable if my representation was predicated
solely upon a present intention to hold these Securities 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 Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available (such as Rule 144 or the
resale provisions of Rule 701 under the Securities Act). Moreover, I understand
that the Company is under no obligation to register the Securities. In addition,
I understand that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Company.
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(d) I am familiar with the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
The availability of certain public information about the Company; (2) the resale
occurring not less than two years after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities less
than three years, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker, as said
term is defined under the Securities Exchange Act of 1934 (the "Exchange Act")
and the amount of securities being sold during any three month period not
exceeding the specified limitations stated therein, if applicable. The Purchaser
further understands that the resale provisions of Rule 701 will not apply until
90 days after the Company becomes subject to the reporting obligations under the
Exchange Act (typically upon the effective date of a company's initial public
offerings). There can be no assurances that the requirements of Rule 144 or Rule
701 will be met, or that the Securities will ever be saleable.
(e) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, I would be precluded from selling the Securities under Rule 144 even
if the two- year minimum holding period had been satisfied.
(f) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, or that the resale provisions of
Rule 701 are not available, registration under the Securities Act, compliance
with Regulation A, compliance with some other registration exemption or the
notification to the Company of the proposed disposition by me and the furnishing
to the Company of (i) detailed information regarding the disposition, and (ii)
and opinion of my counsel to the effect that such disposition will not require
registration (I understand such counsel's opinion shall concur with the opinion
by counsel for the Company and I shall have been informed of such compliance)
will be required and that, notwithstanding the fact that Rule 144 is not
exclusive, the Staff of the SEC 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 will 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.
Signature of Purchaser:
/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Date: July __, 1997
