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EXHIBIT 10.01
RESTRICTED STOCK PURCHASE AGREEMENT
This Agreement is made this ______ day of _________________, 199__
between AeroMax, Inc. (the "Company"), a Delaware corporation, and JetFleet
Management Corp. ("Purchaser").
RECITALS
A. The Company desires to engage Purchaser as management company pursuant
to a Management Agreement dated of even date herewith.
B. In connection with the engagement by the Company of Purchaser as
Management Company, as additional compensation to Purchaser, pursuant to a
compensation plan adopted by the Board of Directors, the Company desires to
purchase 150,000 shares of Common Stock.
C. The issuance of such shares of Common Stock is intended to be exempt
from registration under the Securities Act of 1933 pursuant to Rule 701
thereunder.
The Company and Purchaser hereby agree as follows:
1. Purchase of Shares. On this date and subject to the terms and
conditions of this Agreement, Purchaser hereby purchases from the Company, and
the Company hereby sells to Purchaser, an aggregate of 150,000 shares of the
Company's common stock (the "Shares") at an aggregate purchase price of
$150,000 (the "Purchase Price") or $1.00 per Share (the "Purchase Price Per
Share"). The term "Shares" refers to the Shares purchased under this Agreement
and includes all securities received (a) in replacement of the Shares, (b) as a
result of stock dividends or stock splits in respect of the Shares, and (c) all
securities received in replacement of the Shares in a recapitalization, merger,
reorganization or the like.
2. Representations of Purchaser. Purchaser represents and
warrants to the Company that:
(a) Purchaser is purchasing the Shares for Purchaser's
own account for investment purposes only and not with a view to, or for sale in
connection with, a distribution of the Shares within the meaning of the
Securities Act of 1933, as amended (the "1933 Act").
(b) Purchaser has no present intention of selling or
otherwise disposing of all or any portion of the Shares.
(c) Purchaser has had access to all information regarding
the Company and its present and prospective business, assets, liabilities and
financial condition that Purchaser reasonably considers important in making the
decision to purchase the Shares, and Purchaser has had ample opportunity to ask
questions of the Company's representatives concerning such matters and this
investment.
(d) Purchaser is fully aware of (i) the highly
speculative nature of the investment in the Shares; (ii) the financial hazards
involved; (iii) the lack of liquidity of the Shares and the restrictions on
transferability of the Shares (e.q. that Purchaser may not be able to sell or
dispose of the Shares or use them as collateral for loans); and (iv) the
qualifications and backgrounds of the principals of the Company.
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(e) Purchaser is capable of evaluating the merits and
risks of this investment, has the ability to protect Purchaser's own interests
in this transaction and is financially capable of bearing a total loss of this
investment.
(f) At no time was Purchaser presented with or solicited
by any publicly issued or circulated newspaper, mail, radio or television, or
any other form of general advertising in connection with the sale and purchase
of the Shares.
3. Compliance with Federal Securities Laws. Purchaser
understands and acknowledges that, in reliance upon the representations and
warranties made by Purchaser herein, the Shares have not been registered with
the Securities and Exchange Commission ("SEC") under the 1933 Act, but have
been issued under an exemption or exemptions from the registration requirements
of the 1933 Act which impose certain restrictions on Purchaser's ability to
transfer the Shares.
(a) Restrictions on Transfer. Purchaser understands that
Purchaser may not transfer any Shares unless such Shares are registered under
the 1933 Act or unless, in the opinion of counsel to the Company, an exemption
from such registration is available. Purchaser understands that only the
Company may file a registration statement with the SEC and that the Company is
under no obligation to do so with respect to the Shares. Purchaser has also
been advised that an exemption from registration may not be available or may
not permit Purchaser to transfer all or any of the Shares in the amounts or at
the times proposed by Purchaser.
(b) Rule 144. In addition, Purchaser has been advised
that SEC Rule 144 promulgated under the 1933 Act, which permits certain limited
sales of unregistered securities, is not presently available with respect to
the Shares and, in any event, requires that the Shares be held for a minimum of
two years, and in certain cases three years, after they have been purchased and
paid for (within the meaning of Rule 144), before they may be resold under Rule
144.
(c) Rule 701. Purchaser understands that the exemption
relied upon for the purchase and sale of the Shares is Rule 701, and that the
Shares will become freely transferrable, subject to limited conditions
regarding the method of sale, by nonaffilitates 90 days after the first sale of
common stock of the Company to the general public pursuant to a registration
statement filed with and declared effective by the Securities and Exchange
Commission, subject to any lengthier market standoff agreement entered into by
Purchaser. Affiliates must comply with the provisions (other than the holding
period requirements) of Rule 144 for such resales.
5. Company's Repurchase Option. The Company shall have the
option to repurchase all or a portion of the Shares on the terms and conditions
set forth in this Section (the "Repurchase Option") if Purchaser should cease
to be engaged by the Company as management Company pursuant to that certain
Management Agreement, to be entered into between the Company and Purchaser
contemporaneously with this Agreement.
(a) Right of Termination Unaffected. Nothing in this
Agreement shall be construed to limit or otherwise affect in any manner
whatsoever the right or power of the Company to terminate Purchaser's
engagement. In case of any dispute, the Board of Directors of the Company
shall have discretion to determine whether Purchaser has ceased to be engaged
by the Company or any parent, subsidiary or affiliate of the Company and the
effective date on which Purchaser's engagement terminated (the "Termination
Date").
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(b) Vested and Unvested Shares. The percentage of the
Shares that are considered "Vested Shares" shall be determined as follows:
If Purchaser has been
continuously engaged
by the Company from
_____________, 1997, Then the Percentage of
(the "Start Date") until the Shares that
the Termination Date For: are Vested Shares is:
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Less than 6 months None
6 months or more 40% plus 5% for each
additional full month
that the Purchaser has
been continuously em-
ployed by the Company
after 6 months after
the Start Date
18 months or more 100%
Shares that are not Vested Shares are "Unvested Shares". Unvested Shares may
not be sold or otherwise transferred by Purchaser without the Company's prior
written consent.
(c) Exercise of Repurchase Option. At any time within 60
days after the Termination Date, the Company may elect to repurchase any or all
of the Unvested Shares, by giving Purchaser written notice of exercise of the
Repurchase Option.
(d) Repurchase of Unvested Shares. The Company or its
assignee(s) shall have the option to repurchase from Purchaser (or from
Purchaser's personal representative as the case may be) any or all of the
Unvested Shares at the current full market value of the Shares as determined in
good faith by the Company's Board of Directors.
(e) Payment of Repurchase Price. The repurchase price
shall be payable, at the option of the Company or its assignee(s), by check or
by cancellation of all or a portion of any outstanding indebtness of Purchaser
to the Company or by any combination thereof. The repurchase price shall be
paid without interest within 60 days after the Termination Date
6. Rights as Shareholder. Subject to the terms and conditions of
this Agreement, Purchaser shall have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Purchaser
disposes of the Shares or the Company and/or its assignee(s) exercises the
Right of First Refusal hereunder. Upon such exercise, Purchaser shall have no
further rights as a holder of the Shares so purchased except the right to
receive payment for the Shares so purchased in accordance with the provisions
of this Agreement, and Purchaser shall forthwith cause the certificate(s)
evidencing the Shares so purchased to be surrendered to the Company for
transfer or cancellation.
7. Escrow. As security for the faithful performance of this
Agreement, Purchaser agrees, immediately upon receipt of the certificate(s)
evidencing the Shares, to deliver such certificate(s), together with a stock
power in the form of Exhibit A attached hereto, executed by
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Purchaser and by Purchaser's spouse, if any (with the date and number of Shares
left blank), to the Secretary of the Company or its designee ("Escrow Holder"),
who is hereby appointed to hold such certificate(s) and stock power in escrow
and to take all such actions and to effectuate all such transfers and/or
releases of such Purchaser and the Company agree that Escrow Holder shall not
be for any actions or omissions unless Escrow Holder shall not be for any
actions or omissions unless Escrow Holder is grossly negligent relative
thereto. The Escrow Holder may rely upon purported to be genuine and may rely
on advice of counsel and obey any order of any court with respect to the
transactions upon termination of the Right of First Refusal; provided, however,
that such release shall not affect the rights of the Company with respect to
any pledge of Shares to the Company.
8. Tax Consequences. Purchaser hereby acknowledges that
Purchaser has been informed that, unless an election is filed by the Purchaser
with the Internal Revenue Service and, if necessary, the proper state taxing
authorities, within 30 days of the purchase of the Shares, electing pursuant to
Section 83(b) of the Internal Revenue Code (and similar state tax provisions if
applicable) to be taxed currently on any difference between the purchase price
of the Shares and their fair market value on the date of purchase, there will
be a recognition of taxable income to the Purchaser, measured by the excess, if
any, of the fair market value of the Vested Shares, at the time they cease to
be Unvested Shares, over the purchase price for such Shares. Purchaser
represents that Purchaser has consulted any tax consultant(s) Purchaser deems
advisable in connection with the purchase of the Shares or the filing of the
election under Section 83(b) and similar tax provisions. A form of Election
under Section 83(b) is attached hereto as Exhibit B for reference. PURCHASER
HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING ANY TAXES
RESULTING FROM SUCH ELECTION OR THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE
UNVESTED SHARES.
9. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Purchaser understands and agrees that the
Company shall cause the legends set forth below or legends substantially
equivalent thereto, to be placed upon any certificate(s) evidencing ownership
of the Shares, together with any other legends that may be required by state or
federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS
IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON PUBLIC RESALE, TRANSFER, AND A RIGHT OF REPURCHASE
OPTION HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN A
RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH PUBLIC SALE AND TRANSFER
RESTRICTIONS AND THE RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREE
OF THESE SHARES.
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(b) Stop-Transfer Instructions. Purchaser agrees that,
in order to ensure compliance with the restrictions referred to herein, the
Company may issue appropriate "stop-transfer" instructions to its transfer
agent, if any, and that, if the Company transfers its own securities, it may
make appropriate notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be
required (i) to transfer on its books any Shares that have been sold or
otherwise transferred in violation of any of the provisions of this Agreement
or (ii) to treat as owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such Shares shall have
been so transferred.
(d) Market Standoff Agreement. Purchaser agrees in
connection with any registration of the Company's securities that, upon the
request of the Company or the underwriters managing any public offering of the
Company's securities, Purchaser will not sell or otherwise dispose of any
Shares without the prior written consent of the Company or such underwriters,
as the case may be, for a period of time (not to exceed 90 days) from the
effective date of such registration as the Company or the underwriters may
specify.
10. Compliance with Laws and Regulations. The issuance and
transfer of the Shares hereunder shall be subject to and conditioned upon
compliance by the Company and Purchaser with all applicable state and federal
laws and regulations and with all applicable requirements of any stock exchange
on which the Company common stock may be listed at the time of such issuance
and transfer.
11. Successors and Assigns. The Company may assign any of its
rights under this Agreement, including its rights to repurchase Shares under
the Repurchase Option. However, if the Company assigns its right to repurchase
Shares under the Repurchase Option to a holder of more than 10% of the
Company's outstanding voting securities, the assignee shall pay to the Company,
in addition to the purchase price it pays to Purchaser, the difference between
the cost of the Shares purchased under the Repurchase Option and the current
fair market value of the Shares, as determined by the Company's Board of
Directors. This Agreement will inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement will be binding upon Purchaser and Purchaser's heirs,
executors, administrators, successors and assigns.
12. Interpretation. Any dispute regarding the interpretation of
this Agreement shall be submitted by Purchaser or by the Company forthwith to
the Company's Board of Directors or the committee thereof that administers
employee stock plans, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or committee shall be
final and binding on the Company and on Purchaser.
13. Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
excluding that body of laws pertaining to conflict of laws. Should any
provision of this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
14. Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery
or upon deposit in the United States mail
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by certified or registered mail, return receipt requested, with postage and
fees prepaid, addressed to the other party at its address as shown below
beneath its signature, or to such other address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
15. Further Instruments. The parties agree to execute such
further instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
16. Entire Agreement. This Agreement, together with the Exhibits
hereto and the Plan, constitutes the entire agreement of the parties and
supersedes all prior understandings and agreements with respect to the subject
matter hereof.
17. Delivery of Payment. Purchaser hereby delivers to the Company
the full Purchase Price as follows: (in cash in the amount of $150,000, receipt
of which is acknowledged by the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in duplicate by its duly authorized representative and Purchaser has
executed this Agreement in duplicate as of the date set forth above.
AEROMAX, INC. JETFLEET MANAGEMENT CORP.
By: ______________________ By: ___________________________
Its:______________________ Its:___________________________
Address: _________________ Address: ______________________
__________________________ _______________________________
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EXHIBIT A
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Purchase
Agreement dated as of __________________, 199__, the undersigned hereby sells,
assigns and transfers unto ____________________, __________ shares of the
common stock of ___________________, a California corporation, standing in the
undersigned's name on the books of said corporation represented by Certificate
No. ____ delivered herewith, and does hereby irrevocably constitute the
Secretary of said corporation as attorney-in-fact, with full power of
substitution, to transfer said stock on the books of said corporation.
Dated: __________________. 199__
______________________________
(Signature)
______________________________
(Please Print Name)
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EXHIBIT B
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, to include in gross income for the Taxpayers's current
taxable year the excess, if any, of the fair market value of the property
described below at the time of transfer over the amount paid for such property,
as compensation for services.
1. TAXPAYER'S NAME: ____________________________
TAXPAYER'S ADDRESS: ____________________________
____________________________
SOCIAL SECURITY NUMBER: ____________________________
2. The property with respect to which the election is made is described
as follows: ___________ shares of Common Stock of
____________________________, a California corporation (the "
Company"), which is Taxpayers's employer or the corporation for whom
the Taxpayer performs services.
3. The date on which the shares were transferred was ____________,
199___, and this election is made for calendar year 199_______.
4. The shares are subject to the following restrictions: The Company may
repurchase all or a portion of the shares at the Taxpayer's original
purchase price under certain conditions at the time of Taxpayers's
termination of employment or services.
5. The fair market value of the shares (without regard to restrictions
other than restrictions which by their terms will never lapse) was
$_______ per share at the time of transfer.
6. The amount paid for such shares was $__________ per share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS"), AT THE
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER
THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE
TAXPAYER'S INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE
REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: ___________________, 19___ _________________________
Taxpayer's Signature
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