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EXHIBIT 10.5
INTERACTIVE KNOWLEDGE, INC.
FOUNDER'S STOCK PURCHASE AGREEMENT
THIS FOUNDER'S STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made by
and between Interactive Knowledge, Inc., a Delaware corporation (the
"COMPANY"), and Xxxxx X. Xxxxxxxx (the "PURCHASER"), as of the 1st day of
August, 1998.
WHEREAS the Purchaser is an employee, director or consultant of the
Company and the Purchaser's continued service to the Company is considered by
the Company to be important for the Company's continued growth;
WHEREAS in order to give the Purchaser an opportunity to acquire an
equity interest in the Company as an incentive for the Purchaser to participate
in the affairs of the Company, the Company is willing to sell to the Purchaser
and the Purchaser desires to purchase shares of the Company's $.001 par value
common stock ("the Common Stock") according to the terms and conditions
contained herein; and
WHEREAS, the issuance of Common Stock hereunder is in connection with
and in furtherance of the Company's compensatory benefit plan for participation
of the Company's employees, directors, officers, consultants and advisors and
is intended to comply with the provisions of Rule 701 promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act").
NOW THEREFORE, in consideration of the premises set forth herein, and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. SALE OF STOCK. The Company hereby sells to the Purchaser and
the Purchaser hereby purchases an aggregate of Ninety Thousand (90,000) shares
of the Company's Common Stock (the "SHARES") in consideration of the transfer
of assets to, and/or the performance of services for, the Company, such assets
and/or services having a value in the aggregate amount of Nine Thousand Dollars
($9,000).
2. PAYMENT OF PURCHASE PRICE. The purchase price for the Shares
has been fully paid by assignment to or performance for the Company, at the
time of execution of this Agreement, of the specified assets and/or services.
3. REPURCHASE OPTION.
(a) In the event of any voluntary or involuntary termination
of Purchaser's director position with the Company for any or no reason
(including death or disability) before all of the Shares are released from the
Company's repurchase option (the "Repurchase Option") (see
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Section 4), the Company shall, upon the date of such termination (as reasonably
fixed and determined by the Company) have an irrevocable, exclusive option for
a period of 90 days (or such longer period of time mutually agreed to by
Purchaser and the Company) from such date to repurchase some or all of the
Unreleased Shares (as defined in Section 4) at such time at the original
purchase price per share (the "REPURCHASE PRICE").
(b) Said option shall be exercised by the Company by
written notice as provided in Section 12(a) to the Purchaser or the Purchaser's
executor and, at the Company's option, (i) by delivery to the Purchaser or the
Purchaser's executor with such notice of a check in the amount of the purchase
price for the Shares being repurchased, or (ii) by cancellation by the Company
of an amount of the Purchaser's indebtedness to the Company in an amount equal
to the purchase 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 the
payment of the purchase price by any method described above, the Company shall
become the legal and beneficial owner of the Shares being repurchased and all
rights and interests therein or relating thereto, and the Company shall have
the full right and authority to transfer on its books to its own name the
number of Shares being repurchased by the Company.
(c) Nothing in this Agreement shall affect in any manner
whatsoever the right or power of the Company, or a parent or subsidiary of the
Company, to terminate Purchaser's employment or consulting relationship, for
any reason, with or without cause.
(d) The Company may assign its rights under this Section
3.
4. RELEASE OF SHARES FROM REPURCHASE OPTION.
(a) The number of Shares to be released from the Company's
Repurchase Option is set forth in a schedule attached hereto as Exhibit A,
provided, that, in the case of a termination without cause (as defined below)
and subject to Purchaser releasing the Company of all claims of Purchaser
arising from Purchaser's service as a director (other than claims arising from
wilful misconduct by the Company and rights of indemnification and defense as a
director), the date of cessation of service used to calculate the number of
Shares released from the Company's Repurchase Option shall be deemed to be a
date six months after the actual date of termination, and provided further,
that, as to each incremental period resulting in the release of Shares from
such Repurchase Option, that the Purchaser's services have not been terminated
prior to the date of any such release.
(b) Any of the Shares which have not yet been released from
the Company's Repurchase Option are referred to herein as "UNRELEASED SHARES."
(c) For purposes of Section 4(a), a termination without cause
shall mean (i) any action by the officers, or Board of Directors of the Company
to terminate or not to renew
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Purchaser's employment by the Company, other than as a result of [A]
Purchaser's refusal or failure to perform his duties as a member of the Board
of Directors (if such failure or refusal is not cured within 30 days after
notice thereof by the Company), [B] a material breach by Purchaser of the
Company's written policies and procedures, or of any agreement between
Purchaser and the Company, or [C] conviction of Purchaser of a felony, or (ii)
the resignation by Purchaser, or other action by Purchaser to terminate his
status as a director, under circumstances where there has been a material
reduction in his duties, responsibilities or position with the Company, or
where there have been actions by the Company or its officers to create a
working environment that materially impedes Purchaser's ability to satisfy his
obligations as a director of the Company.
5. RESTRICTIONS ON TRANSFER.
(a) Except for the escrow described in Xxxxxxx 0, xxxx of the
Shares or any beneficial interest therein shall be transferred, encumbered or
otherwise disposed of until the release of such Shares from the Company's
Repurchase Option in accordance with the provisions of this Agreement. Any sale
or transfer, or purported sale or transfer, of securities of the Company shall
be null and void unless the terms, conditions and provisions of this Agreement
are strictly observed.
(b) The Shares may not be sold, offered for sale, pledged,
hypothecated or otherwise transferred in the absence of an effective
registration statement under the Securities Act with respect to such Shares or
an opinion of counsel reasonably acceptable to the Company that such
registration is not required. The Company shall not be required to transfer on
its books any portion of such Shares purchased hereunder which shall have been
sold or transferred in violation of any of the provisions set forth in this
Agreement, or to treat as the 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.
(c) The Purchaser hereby agrees that during the one hundred
eighty (180) day period following the effective date of a registration
statement of the Company filed under the Securities Act, the Purchaser shall
not, to the extent requested by the Company and the managing underwriter, sell
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any Shares or other securities of the Company held by
Purchaser at any time during such period except Shares included in such
registration; provided, that, all officers and directors of the Company enter
into similar agreements. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such one hundred eighty
(180) day period.
6. ESCROW. As security for Purchaser's faithful performance of
the terms of this Agreement and to insure that the Shares will be available for
delivery upon exercise of the Repurchase Option as herein provided, Purchaser
agrees to deliver to and deposit with the Secretary of the Corporation (the
"ESCROW AGENT"), as escrow agent in this transaction, a Stock Assignment duly
endorsed (with date and number of shares blank) substantially in the form of
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Exhibit B attached hereto, together with the certificate or certificates
evidencing the Shares; said documents are to be held by the Escrow Agent and
delivered by the Escrow Agent pursuant to the Joint Escrow Instructions of the
Company and Purchaser substantially in the form of Exhibit C attached hereto,
which instructions shall also be delivered to the Escrow Agent at the closing
hereunder. At the request of Purchaser at any time following a Qualified IPO or
a Corporate Transaction, and once each year, Shares that are not Unreleased
Shares shall be released from the Escrow.
7. CHANGES IN CAPITALIZATION; CONSOLIDATION; MERGER; SALE OF
ASSETS
(a) If during the term of the Repurchase Option, there is any
stock dividend or liquidating dividend of cash and/or property, stock split or
other change in the character or amount of any of the outstanding securities of
the Company, then any and all new, substituted or additional securities or
other property to which Purchaser is entitled by reason of Purchaser's
ownership of the Shares shall be immediately subject to the Repurchase Option
and be included in the word "Shares" for all purposes of the Repurchase Option
with the same force and effect under the terms of Sections 2 hereof, as the
Shares subject to the Repurchase Option. With respect to the Repurchase Option,
while the total Repurchase Price shall remain the same after each such event,
the Repurchase Price per Share upon exercise of the Repurchase Option shall be
appropriately adjusted.
(b) If during the term of the Repurchase Option there is
either (i) a Corporate Transaction (as defined below), or (ii) following
closing of a registered public offering of the Company's shares at a per-share
price of $5.00 or more and resulting in gross cash proceeds to the Company of
at least $15 million dollars (a "Qualified IPO"), Purchaser is removed from or
not re-elected to the Company's Board of Directors, then immediately prior to
the occurrence of such event, the Repurchase Option shall automatically lapse
in its entirety.
A "CORPORATE TRANSACTION" shall mean one or more of the following
events: (i)(A) any consolidation or merger of the Company with or into any other
corporation or other entity or person, or any other corporate reorganization, in
which the stockholders of the Company immediately prior to such consolidation,
merger or reorganization, own less than 50% of the Company's voting power
immediately after such consolidation, merger or reorganization; provided, that,
the foregoing shall only be deemed a Corporate Transaction if the stockholders
of the Company or its successor immediately prior to such consolidation, merger
or reorganization; (1) hold less than 50% of the outstanding securities of the
surviving company following the merger or consolidation or, (2) in the event
that the securities of an affiliated entity of the surviving corporation are
issued to the stockholders of the Company in the transaction, hold less than 50%
of the outstanding securities of such affiliated entity, or (B) any transaction
or series of related transactions in which in excess of fifty percent (50%) of
the Company's voting power is transferred; or (ii) a sale, lease or other
disposition of all or substantially all of the assets of the Company.
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8. 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. 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. The
Purchaser understands that Section 83 of the Internal Revenue Code of 1986, as
amended (the "CODE"), taxes as ordinary income the difference between the
amount paid for the Shares and the fair market value of the Shares as of the
date any restrictions on the Shares lapse. In this context, "restriction"
includes the right of the Company to buy back the Shares pursuant to its
Repurchase Option. Purchaser understands that Purchaser may elect to be taxed
at ordinary income rates on the difference, if any, between the amount paid for
the Shares and the fair market value of the Shares at the time the Shares are
purchased, rather than when and as the Repurchase Option lapses, by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days from the date of purchase. Even if the fair market
value of the Shares equals the amount paid for the Shares, the election must be
made to avoid taxation as the restrictions expire. After Purchaser files an
election under Section 83(b), any subsequent increase in the fair market value
of the Shares will not be taxed as the restrictions expire, and any gain
thereafter realized on the sale of the Share will be taxed as capital gain.
Purchaser further understands that if Purchaser files such an election under
Section 83(b) of the Code, and the Company subsequently exercises the
Repurchase Option with regard to all or part of the Shares, Purchaser might not
be eligible to claim a loss deduction in the amount of taxable income which was
previously recognized, or the amount of tax paid, as a consequence of the
election under Section 83(b) with regard to the Shares repurchased. PURCHASER
UNDERSTANDS THAT FAILURE TO MAKE THIS FILING IN A TIMELY MANNER WILL RESULT IN
THE RECOGNITION OF ORDINARY INCOME BY PURCHASER, AS THE REPURCHASE OPTION
LAPSES, ON ANY DIFFERENCE BETWEEN THE PURCHASE PRICE AND THE FAIR MARKET VALUE
OF THE STOCK AT THE TIME SUCH RESTRICTIONS LAPSE.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S OR THE COMPANY'S COUNSEL TO FILE TIMELY
THE ELECTION UNDER SECTION 83(b), EVEN IF THE PURCHASER REQUESTS THE COMPANY OR
ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PURCHASER'S BEHALF.
9. PURCHASER REPRESENTATIONS. In connection with the purchase of
the Shares, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Shares.
Purchaser is purchasing the Shares for investment for Purchaser's own account
only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act. Purchaser also
represents that the entire legal and beneficial interest of the Shares is being
purchased, and will be held, for Purchaser's own account.
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(b) Purchaser understands that the Shares have not been
registered under the Securities Act by reason of a specific exemption therefrom,
which exemption depends upon, among other things, the bona fide nature of
Purchaser's investment intent as expressed herein.
(c) Purchaser further acknowledges and understands that
the Shares must be held indefinitely unless the Shares are subsequently
registered under the Securities Act or an exemption from such registration is
available. Purchaser further acknowledges and understands that the Company is
under no obligation to register the Shares. Purchaser understands that the
certificate evidencing the Shares will be imprinted with a legend which
prohibits the transfer of the Shares unless the Shares are registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules
144 and 701 under the Securities act, as in effect from time to time, which, in
substance, permit 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. Rule 701 provides that if the issuer qualifies under Rule 701 at
the time of issuance of the securities, such issuance will be exempt from
registration under the Securities Act. In the event the Company becomes subject
to the reporting requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the securities exempt under Rule 701 may be sold by
Purchaser ninety (90) days thereafter.
In the event that the sale of the Shares does not
qualify under Rule 701 at the time of purchase, then the Shares may be resold by
Purchaser in certain limited circumstances subject to the provisions of Rule
144, which requires, among other things: (i) the availability of certain public
information about the Company and (ii) the resale occurring following the
required holding period under Rule 144 after the Purchaser has purchased, and
made full payment of (within the meaning of Rule 144), the securities to be
sold.
(e) Purchaser further understands that at the time
Purchaser wishes to sell the Shares 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 current information
requirements of Rule 144 or 701, and that, in such event, Purchaser would be
precluded from selling the Shares under Rule 144 or 701 even if the minimum
holding period requirement had been satisfied.
10. RESTRICTIVE LEGENDS. All certificates representing the Shares
shall have endorsed thereon legends in substantially the following forms:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT
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AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A REPURCHASE OPTION SET FORTH IN AN AGREEMENT BETWEEN THE
CORPORATION AND THE REGISTERED HOLDER, OR ITS PREDECESSOR IN INTEREST, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION. ANY TRANSFER OR
ATTEMPTED TRANSFER OF ANY SHARES SUBJECT TO SUCH OPTION IS VOID WITHOUT THE
PRIOR EXPRESS WRITTEN CONSENT OF THE CORPORATION."
(c) Purchaser shall have the right, at any time
following a Qualified IPO or a Corporate Transaction, and once each year, to
surrender (or cause the Escrow Agent to surrender) the certificate(s)
representing the Shares, and new certificates shall be issued, and the
certificate representing shares that are not Unreleased Shares shall be issued
without the legend set out in Paragraph (2) above.
(d) Any legend required to be placed thereon by
appropriate Blue Sky officials.
11. STOCKHOLDER RIGHTS. Subject to the provisions of
Section 5 above, Purchaser (but not any unapproved transferee) shall, during
the term of this Agreement, exercise all rights and privileges of a stockholder
of the Company with respect to the Shares deposited in said escrow.
12. MISCELLANEOUS.
(a) NOTICES. Any notice required or permitted
hereunder shall be given in writing and shall be deemed effectively given upon
personal delivery or sent by telegram or fax or upon deposit in the United
States Post Office, by registered or certified mail with postage and fees
prepaid, addressed to the other party hereto at his address hereinafter shown
below or at such other address as such party may designate by ten (10) days'
advance written notice to the other party hereto.
(b) SUCCESSORS AND ASSIGNS. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto and shall inure to the benefit of and be
enforceable by each person who shall be a holder of the Shares from time to
time.
(c) GOVERNING LAW; VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado.
The parties agree that any action brought by either party to interpret or
enforce any provision of this Agreement shall be brought
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in, and each party agrees to, and does hereby, submit to the jurisdiction and
venue of, the appropriate state or federal court for the district encompassing
the Company's principal place of business.
(d) ENTIRE AGREEMENT; AMENDMENT; FURTHER EXECUTION.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes and merges all prior
agreements or understandings, whether written or oral, other than the letter
agreement dated the date hereof. This Agreement may not be amended, modified or
revoked, in whole or in part, except by an agreement in writing signed by each
of the parties hereto. The parties agree to take all such further action as may
reasonably be necessary to carry out the intent of this Agreement.
(e) SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, portions of such
provisions, or such provisions in their entirety, to the extent necessary,
shall be severed from the Agreement, and the balance of the Agreement shall be
interpreted as if such provisions were so excluded and shall be enforceable in
accordance with its terms.
(f) COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
(g) REVIEW OF AGREEMENT. Purchaser has reviewed this
Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Agreement and fully understands all provisions
of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Founder's
Stock Purchase Agreement as of the day and year first set forth above.
INTERACTIVE KNOWLEDGE, INC. PURCHASER:
By: /s/ XXXXXXX X. XXXXXXX /s/ XXXXX X. XXXXXXXX
----------------------------- ---------------------
Xxxxxxx X. Xxxxxxx, President Xxxxx X. Xxxxxxxx
Address: 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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EXHIBIT A
SCHEDULE OF RELEASE OF SHARES FROM REPURCHASE OPTION
PERCENT OF SHARES RELEASED
IF CESSATION OF EMPLOYMENT OCCURS BEFORE: FROM REPURCHASE OPTION:
September 1, 1998 33.3333% of the Shares
October 1, 1998 35.1852% of the Shares
November 1, 1998 37.0371% of the Shares
December 1, 1998 38.8890% of the Shares
January 1, 1999 40.7409% of the Shares
February 1, 1999 42.5928% of the Shares
March 1, 1999 44.4447% of the Shares
April 1, 1999 46.2966% of the Shares
May 1, 1999 48.1485% of the Shares
June 1, 1999 50.0004% of the Shares
July 1, 1999 51.8523% of the Shares
August 1, 1999 53.7042% of the Shares
September 1, 1999 55.5566% of the Shares
October 1, 1999 57.4085% of the Shares
November 1, 1999 59.2604% of the Shares
December 1, 1999 61.1123% of the Shares
January 1, 2000 62.9642% of the Shares
February 1, 2000 64.8161% of the Shares
March 1, 2000 66.6680% of the Shares
April 1, 2000 68.5199% of the Shares
May 1, 2000 70.3718% of the Shares
June 1, 2000 72.2237% of the Shares
July 1, 2000 74.0756% of the Shares
August 1, 2000 75.9275% of the Shares
September 1, 2000 77.7799% of the Shares
October 1, 2000 79.6318% of the Shares
November 1,2000 81.4837% of the Shares
December 1,2000 83.3356% of the Shares
January 1, 2001 85.1875% of the Shares
February 1, 2001 87.0394% of the Shares
March 1, 2001 88.8913% of the Shares
April 1, 2001 90.7432% of the Shares
May 1, 2001 92.5951% of the Shares
June 1, 2001 94.4470% of the Shares
July 1, 2001 96.2989% of the Shares
August 1, 2000 98.1508% of the Shares
September 1, 2001 100% of the Shares
A-1
