SHAREHOLDERS AGREEMENT
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THIS AGREEMENT is made this 24 day of November, 1993, by and
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between N2, Inc., a California corporation (the "Company"), and Xxxxxxx
Xxxxxxxxxx ("Purchaser", which term includes his or her heirs, executors,
guardians, successors and assigns).
WHEREAS, the Purchaser desires to purchase shares of common stock of
the Company and the Company desires to sell shares of its common stock to the
Purchaser, and
NOW THEREFORE, IT IS HEREBY AGREED:
1. Sale of Stock. The Company shall sell to Purchaser and Purchaser
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shall purchase from the Company, subject to Section 4 hereof, One Million Five
Hundred Thousand (1,500,000) shares of common stock of the Company (the "Stock")
at a price of $0.0001 per share ("Purchase Price").
2. Payment of Purchase Price.
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a. The Purchaser shall pay the Purchase Price for the Stock by
delivering to the Company at the time of execution of this Agreement a check in
the amount of $150.00.
3. Issuance of Shares. Upon receipt by the Company of the Purchase
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Price for the Stock, the Company shall issue a duly executed certificate
evidencing the Stock in the name of Purchaser, to be held in escrow until
expiration of the Company's Purchase Option described in Section 4 below.
4. Purchase Option. The Stock shall be subject to the following
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option ("Purchase Option"):
a. In the event the Purchaser ceases to be continuously
employed by the Company, or a parent or subsidiary of the Company, for any
reason, with or without cause, the Company may exercise the Purchase Option.
For the purpose of this Section 4, Purchaser's "continuous employment" shall
cease when Purchaser ceases to be actively employed by the Company or a parent
or subsidiary of the Company as determined by and in the sole discretion of
the Board of Directors of the Company. A leave of absence (regardless of the
reason therefor) shall constitute the cessation of Purchaser's active
employment unless such leave is authorized by the Company in writing and
Purchaser returns to work within the time specified in such authorization or
in any amendment thereto. The date when continuous employment ceases is
hereinafter referred to as the Termination Date.
The Company shall have the right at any time within sixty (60) days
after the later of the Termination Date or the date any approved leave
terminates (if employee fails to return within the time specified) to purchase
from the Purchaser at the price per share paid by Purchaser pursuant to this
Agreement ("Option Price"), (i) at any time prior to the date Purchaser has
completed 12 months of employment after June 6, 1993 (the "Commencement Date"),
all the Stock, and (ii) thereafter, up to but not exceeding a percentage of the
Stock equal to 100%, less 1.67% for each completed month of employment with the
Company between the Commencement Date and the Termination Date, inclusive of
both such dates. In addition to (i) and (ii) above, in the event of Purchaser's
death or physical disability, the Company's Purchase Option shall terminate with
respect to 10% of the Stock.
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, for any reason, with or without cause.
b. The Purchase Option, if exercised by the Company, shall be
exercised by written notice signed by an officer of the Company and delivered or
mailed as provided in subsection 9(b), which notice shall specify the time,
place and date for settlement of such purchase. The Company may pay for the
shares of Stock it has elected to repurchase (i) by delivery to Purchaser or his
or her executor of a check in the amount of the repurchase price for the Stock
being repurchased, (ii) by cancellation by the Company of an amount of
Purchaser's indebtedness to the Company or (iii) by a combination of (i) and
(ii) so that the combined payment and cancellation of indebtedness equals such
repurchase price. If exercised by the assignees pursuant to subsection 4(c), the
Purchase Option shall be exercised by written notice signed by the exercising
assignees and delivered or mailed as provided in subsection 9(b), which notice
shall specify the time, place and date for settlement for such purchase. Such
assignees shall pay for the shares of Stock they have elected to repurchase by
delivery to Purchaser or his executor of a check in the amount of the repurchase
price.
c. In the event the Company for any reason elects not to exercise the
Purchase Option pursuant to subsection 4(b), the Company may assign it, provided
that the Purchase Option shall not extend beyond the 60 days described in
subsection 4(a). In the event that the Company and such assignees do not elect
to exercise the Purchase Option as to all of the shares of Stock subject to it,
the Purchase Option shall expire as to all shares which the Company and such
assignees have not elected to purchase.
5. Right of First Offer. Stock subject to the Purchase Option may not
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be transferred. Before any shares of Stock registered in the name of Purchaser
and not subject to the Purchase Option may be sold or transferred (including
transfer by operation of law or other involuntary transfer and excluding
transfers by gift, will or intestate succession of the Purchaser to the
Purchaser's spouse or lineal descendants or ancestors of a trust for the benefit
of such persons if the transferee agrees in writing in a form satisfactory to
the Company to be subject to the terms of this Agreement) such shares shall
first be offered to the Company in the following manner:
a. The Purchaser or his or her transferee shall deliver a
notice by certified mail ("Notice") to the principal business office of the
Company stating (i) his or her bona fide intention to sell or transfer such
shares, (ii) the number of such shares to be sold or transferred, and (iii)
the price, if any, for which he or she proposes to sell or transfer such
shares.
b. The Company shall have the right at any time within thirty
(30) days of receipt of the Notice to purchase some or all of the shares to
which the Notice refers at the price per share specified in the Notice, or if
no price is specified therein, at the fair market value thereof as determined
by the Board of Directors in good faith. Said right shall be exercised by
written notice signed by an officer of the Company and delivered or mailed as
provided in subsection 9(b), which notice shall specify the time, place and
date for settlement of such purchase.
c. In the event the Company does not, for any reason, exercise
its right pursuant hereto the Company may assign such right, provided such
right shall not extend beyond such 30-day period. If exercised by the
assignees pursuant hereto, the right to purchase shall be exercised by written
notice signed by the exercising assignees and delivered or mailed as provided
in subsection 9(b) which notice shall specify the time, place and date for
settlement of such purchase. Purchaser shall sell to the Company or such
assignees the number of shares which either of them elect to purchase, such
sale to be consummated within seventy-five (75) days after the date of the
Notice.
d. If some or all of the shares to which the Notice refers are
not elected to be purchased, as provided in subsections 5(b) and 5(c) hereof,
the Purchaser may sell such shares at the price specified in the Notice or at
a higher price, provided that such sale or transfer is consummated within
seventy-five (75) 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. If Purchaser does not
consummate the sale or transfer within such seventy-five (75) day period, the
right provided hereby shall be deemed to be revived with respect to such shares
and no sale or transfer shall be effected without first offering the shares in
accordance herewith.
e. Purchaser agrees to cooperate affirmatively with the
Company, to the extent reasonably requested by the Company, to enforce rights
and obligations pursuant to this Agreement.
f. Notwithstanding the above, neither the Company nor the
assignees of the Company shall have any right under this Section 5 at any time
subsequent to the Closing of a bona fide, firm commitment underwritten public
offering of the common stock of the Company pursuant to a Registration
Statement declared effective under the Securities Act of 1933, as amended.
6. "Market Stand-Off" Agreement.
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a. In connection with any underwritten initial public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the 1933 Act, including the Company's initial public
offering, Purchaser 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 the Stock 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
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event shall such period exceed one hundred-eighty (180) days.
b. Purchaser shall be subject to the market stand-off
provisions of this Section 6 provided and only if the officers and directors
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of the Company are also subject to similar arrangements.
c. In the event any stock dividend, stock split,
recapitalization or other change affecting the Company's outstanding Common
Stock effected without receipt of consideration, then any new, substituted or
additional securities distributed with respect to the Stock shall be
immediately subject to the provisions of this Section 6 to the same extent the
Stock is at such time covered by such provisions.
d. In order to enforce the limitations of this Section 6, the
Company may impose stop-transfer instructions with
respect to the Stock until the end of the applicable stand-off period.
7. Representations and Warranties of Purchaser.
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a. Investment Intent. This Agreement is made with Purchaser in
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reliance upon his or her representation to the Company, which by his or her
acceptance hereof he or she confirms, that the Stock has been acquired with his
or her own funds for investment for an indefinite period for his or her own
account, not as a nominee or agent, and not with a view to the sale or
distribution of any part thereof, and that he or she has no present intention of
selling, granting participation in, or otherwise distributing the same. By
executing this Agreement, Purchaser further represents that he or she does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer, or grant participations, to such person or to any third person,
with respect to any of the Stock.
b. Exemption from Registration. The Stock has not been registered
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under the Securities Act of 1933, as amended (the "1933 Act") and is being
issued to Purchaser in reliance upon the exemption from such registration
provided by Rule 701 of the Securities and Exchange Commission for stock
issuances under compensatory benefit plans such as this contract.
c. Restricted Securities. Purchaser hereby confirms that
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Purchaser has been informed that the Stock is a restricted security under the
1933 Act and may not be resold or transferred unless the Stock is first
registered under the Federal securities laws or unless an exemption from such
registration is available. Accordingly, Purchaser hereby acknowledges that
Purchaser is prepared to hold the Stock for an indefinite period and that
Purchaser is aware that Rule 144 of the Securities and Exchange Commission
issued under the 1933 Act is not presently available to exempt the sale of the
Stock from the registration requirements of the 1933 Act. Upon the expiration
of the ninety (90)-day period immediately following the date on which the
Company first becomes subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Stock may be sold
(without registration) pursuant to the applicable requirements of Rule 144. If
Purchaser is at the time of such sale an affiliate of the Company for purposes
of Rule 144 or was such an affiliate during the preceding three (3) months,
then the sale must comply with all the requirements of Rule 144 (including the
volume limitation on the number of shares sold, the broker/market maker sale
requirement and the requisite notice to the Securities and Exchange
Commission); however, the two-year holding period requirement of the Rule will
not be applicable. If Purchaser is not at the time of the sale an affiliate of
the Company nor was
such an affiliate during the preceding three (3) months, then none of the
requirements of Rule 144 (other than the broker/market maker sale requirement
for Stock held for less than three (3) years following payment in cash of the
Purchaser Price therefor) will be applicable to the sale. Should the Company not
become subject to the reporting requirements of the Exchange Act, then Purchaser
may, provided he/she is not at the time an affiliate of the Company (nor was
such an affiliate during the preceding three (3) months), sell the Stock
(without registration) pursuant to paragraph (i) of Rule 144 after the Stock has
been held for a period of three (3) years following the payment in cash of the
Purchase Price for such shares.
d. Investment Experience. In connection with the investment
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representations made herein Purchaser represents that he or she is able to fend
for himself or herself in the transactions contemplated by this Agreement, has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of his or her investment, has the ability to
bear the economic risks of his or her investment and has been furnished with and
has had access to such information as would be made available in the form of a
registration statement together with such additional information as is necessary
to verify the accuracy of the information supplied and to have all questions
answered by the Company.
e. Limitations on Disposition. Purchaser agrees that in no
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event will he or she make a disposition of any of the Stock, unless and until
(a) he or she shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and (b) he or she shall have furnished
the Company with an opinion of counsel satisfactory to the Company to the
effect that (i) such disposition will not require registration of such Stock
under the Act, or (ii) that appropriate action necessary for compliance with
the Act has been taken, or (c) the Company shall have waived, expressly and in
writing, its rights under clauses (a) and (b) of this subparagraph.
The Company shall not be required (i) to transfer on its books any
shares of Stock of the Company 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, during the term of this Agreement, exercise all rights and
privileges of a stockholder of the Company with respect to the Stock after the
issuance, and prior to the repurchase, thereof.
f. Legends. All certificates representing any shares of Stock
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of the Company subject to the provisions of this Agreement shall have endorsed
thereon the following legends:
(1) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN SHAREHOLDER AGREEMENT WHICH
INCLUDES A REPURCHASE RIGHT, A MARKET STAND-OFF AGREEMENT AND A RIGHT OF FIRST
REFUSAL ON THE SALE OF THE SECURITIES. COPIES OF THE AGREEMENT MAY BE OBTAINED
UPON WRITTEN REQUEST TO THE SECRETARY OF N2, INC.
(2) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES
UNDER THE SECURITIES ACT OF 1933, OR PURSUANT TO RULE 144 UNDER THE ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT."
(3) Any legend required to be placed thereon by applicable
state securities laws.
8. Escrow of Shares.
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a. Escrow Holder. The Stock issued under this Agreement shall
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be held in escrow by the Secretary of the Company, as escrow holder ("Escrow
Holder"), along with Assignment Separate from Certificate executed by
Purchaser in blank in the form attached hereto as Exhibit A, until expiration
of the Company's Purchase Option described in Section 4 above.
b. Instructions to Escrow Holder. The Escrow Holder is hereby
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directed to permit transfer of the Stock only in accordance with this Agreement
or instructions signed by both parties. In the event that further instructions
are desired by the Escrow Holder, he or she 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 or her own
judgment.
c. Transfer to Transferee. If the Company or any assignee
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exercises its Purchase Option hereunder, then the Escrow Holder, upon receipt
of written notice of such option exercise from the proposed transferee, shall
take all steps necessary to accomplish such transfer.
d. Transfer to Purchaser. When the Purchase Option has been
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exercised or expires unexercised or a portion of
the Stock has been released from the Purchase Option, upon Purchaser's request
the Escrow Holder shall promptly cause a new certificate to be issued for such
released Stock and shall deliver such certificate to Purchaser.
e. Rights of Purchaser. Subject to the terms hereof, Purchaser
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shall have all the rights of a shareholder with respect to such Stock while
such shares are held in escrow, including without limitation the right to vote
the Stock and receive any cash dividends declared thereon.
f. Deposit of Additional Stock. If, from time to time during
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the term of the Company's Purchase Option, there is (i) a dividend of any
security, stock split or other change in the character or amount of any of the
outstanding securities of the Company, (ii) any consolidation, merger or sale
of all, or substantially all, of the assets of the Company, then, in such
event, any and all new, substituted or additional securities or other property
to which Purchaser is entitled by reason of his or her ownership of the Stock
shall be immediately subject to this escrow, shall be deposited with the
Escrow Holder, and shall be included in the word "Stock" for purposes of this
Agreement, the Purchase Option and the right of first offer pursuant to
Section 5 with the same force and effect as the shares of Stock presently
subject to this Agreement, the Purchase Option and the right of first offer.
While the total Option Price shall remain the same after each such event, the
Option Price per share of Stock upon exercise of the Purchase Option shall be
appropriately adjusted as determined by the Board of Directors of the Company.
9. Miscellaneous.
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a. Further Instruments and Actions. The parties agree to
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execute such further instruments and to take such further action as may
reasonably be necessary to carry out the intent of this Agreement.
b. Notices. Any notice required or permitted hereunder shall be
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given in writing and shall be deemed effectively given upon personal delivery
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
or her address hereinafter shown below his or her signature or at such other
address as such party may designate by ten (10) days' advance written notice
to the other party hereto.
c. Governing Law. This Agreement is governed by the internal
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law of California and shall inure to the benefit of the successors and assigns
of the Company and, subject to the restrictions on transfer herein set forth,
be binding upon
Purchaser, his or her heirs, executors, administrators, guardians, successors
and assigns.
d. Amendments and Waivers. This Agreement represents the entire
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understanding of the parties with respect to the subject matter hereof and
supersedes all previous understandings, written or oral. This Agreement may only
be amended with the written consent of the parties hereto and the Company's
assignees pursuant to subsection 4(c) and Section 5 hereof, or the successors or
assigns of the foregoing, and no oral waiver or amendment shall be effective
under any circumstances whatsoever.
10. California Commissioner of Corporations. THE SALE OF THE
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SECURITIES THAT IS THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, AND IN THE ABSENCE OF
AN EXEMPTION FROM SUCH QUALIFICATION REQUIREMENT, THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL. THE RIGHTS OF ALL PARTIES TO
THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED
OR AN EXEMPTION FROM SUCH QUALIFICATION BEING APPLICABLE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
N2, INC.
By /s/ Xxxxxxx Xxxxxxxxxx
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Address:
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PURCHASER
By /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
Address:
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