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EXHIBIT 10.5
AMENDED AND RESTATED VESTING AGREEMENT
This Amended and Restated Vesting Agreement (the "Agreement") is
dated as of October 24, 1997, between INTERVU INC., a Delaware corporation (the
"Corporation" or the "Company"), and Xxxxx Xxxxxx (an "Initial Stockholder").
The Initial Stockholder owns shares of Common Stock, $.001 par
value, of the Corporation (the "Common Stock"). This Agreement is an amendment
and restatement of one of the Vesting Agreements executed and delivered by the
Corporation and each of the initial stockholders of the Corporation (the
"Initial Stockholders") as of March 4, 1996 (the "Vesting Agreements").
The Initial Stockholder is a party to the Voting Trust Agreement
dated as of August 28, 1995 (the "Voting Trust") among Xxxxx Xxxxxx, as Trustee
(the "Trustee"), the Corporation, and each of the Initial Stockholders.
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. As used herein, the following terms shall have
the following respective meanings:
(a) "Disability" shall, with respect to the Initial
Stockholder, mean the written certification by an independent medical doctor
(selected by the Corporation) that the Initial Stockholder has, for 180 days,
consecutive or non-consecutive, in any twelve (12) month period, been disabled
in a manner which renders the Initial Stockholder incapable of contributing any
time or effort on behalf of the Corporation.
(b) "Group" shall mean (i) the Initial Stockholder; (ii)
the spouse, parents, siblings and lineal descendants of the Initial
Stockholder; (iii) a trust for the benefit of any of the foregoing; (iv) any
distributee, legatee or devisee of the Initial Stockholder or anyone described
in the preceding clause (ii); and (v) an entity in which the persons described
in clauses (i) through (iv) own at least 90 percent of the voting and economic
interests; in each case who agrees in writing with the Corporation to be bound
by and to comply with this Agreement to the same extent as the Initial
Stockholder.
(c) "Repurchase Event" shall, with respect to the Initial
Stockholder, mean (i) the death of the Initial Stockholder, (ii) the Disability
of the Initial Stockholder, or (iii) the date upon which the Initial
Stockholder shall no longer be employed by the Corporation for any reason.
(d) "Restricted Stock" shall mean 934,250 shares of Common
Stock, which number reflects stock splits affected through the date hereof.
(e) "Sell" shall, as to any Securities (as hereinafter
defined) mean to sell, or in any other way directly or indirectly transfer,
assign, distribute, encumber, pledge, hypothecate or otherwise dispose of such
Securities, either voluntarily or involuntarily; provided, however, that the
Initial Stockholder and any member of the Group of the Initial Stockholder
shall not be deemed to Sell the Securities if such securities are transferred
to a member of the Group of the Initial Stockholder and
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such person agrees with the Corporation and the Trustee in writing to be bound
by the terms of this Agreement and the Voting Trust to the same extent as the
Initial Stockholder; and provided, further, that the Initial Stockholder shall
not Sell any Securities which constitute Restricted Stock so long as the Voting
Trust shall remain in effect.
(f) "Securities" shall mean (i) the Restricted Stock, (ii)
any other shares of Common Stock issued to the Initial Stockholder prior to the
date hereof (the "Other Shares"), (iii) any other shares of Common Stock
acquired by the Initial Stockholder in respect of the Restricted Stock or the
Other Shares in connection with a stock dividend, distribution or
recapitalization for which no consideration was paid by the Initial
Stockholder, (iii) the Voting Trust Certificate held by the Initial Stockholder
on the date hereof, and (iv) any other Voting Trust Certificate acquired by the
Initial Stockholder in respect of the Voting Trust Certificate held by the
Initial Stockholder on the date hereof in connection with a stock dividend,
distribution or recapitalization for which no consideration was paid by the
Initial Stockholder.
(g) "Selling Group" shall mean the Group of the Initial
Stockholder proposing to Sell any of the Securities, or which has delivered a
notice of intention to Sell, pursuant to Section 3 hereof.
(h) "Voting Trust Certificate" shall mean any voting trust
certificate issued to the Initial Stockholder pursuant to the Voting Trust.
2. Repurchase of Restricted Stock.
(a) On and after the occurrence of a Repurchase Event,
the Corporation shall have the right to purchase from the Initial Stockholder
and any member of the Group of the Initial Stockholder, and the Initial
Stockholder and any member of the Group of the Initial Stockholder shall sell
to the Corporation upon the exercise of such right, at a purchase price per
share of $.005, up to the number of shares of Restricted Stock less the number
of Vested Shares (as hereinafter defined). As used herein:
(i) "Vested Shares" shall mean and be equal to
the product of (A) the number of shares of Restricted Stock and (B) the ratio
of Elapsed Days (as hereinafter defined) to Total Days (as hereinafter
defined).
(ii) "Elapsed Days" shall mean the number of
calendar days which have elapsed from March 4, 1996 until the date of a
Repurchase Event.
(iii) "Total Days" shall mean and be equal to
1,826.
The number of shares of Restricted Stock subject to repurchase at the
time of any stock dividend or other distribution made on or in respect of the
Restricted Stock or any subdivision, combination, redemption or
reclassification of the outstanding capital stock of the Corporation or
received in exchange for the Restricted Stock or any part thereof, shall be
adjusted to give effect to such stock dividend, other distribution,
subdivision, combination, redemption or reclassification.
(b) In order to exercise the option to purchase
Restricted Stock under this Section 2, the Corporation shall deliver a written
notice to the Initial Stockholder within 20 days after the Repurchase Event
indicating its election to purchase such Restricted Stock and specifying the
number
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of shares of Restricted Stock which it elects to purchase and the purchase
price therefore. The repurchase of the Restricted Stock hereunder shall be
made on a date within 60 days of the Repurchase Event, by delivery of a check
payable to the order of the Initial Stockholder, against receipt of one or more
certificates, properly endorsed, evidencing the shares of the Restricted Stock
to be so repurchased.
(c) Notwithstanding the provisions of this Section 2, if
the Corporation is legally prohibited from or legally unable to repurchase the
Restricted Stock during the 60-day period referred to above, such 60-day period
shall be suspended until such date on which the Corporation is legally
permitted or legally able to repurchase the Restricted Stock, whereupon the
Corporation shall have the right to exercise its repurchase option within 60
days after such legal prohibition or inability no longer exists.
3. Procedures on Sale of Securities to Third Parties. Except as
otherwise expressly provided herein, the Initial Stockholder hereby agrees, and
each member of the Group to which the Initial Stockholder belongs shall be
deemed to agree, that he or it shall not Sell any Securities except in
accordance with the following procedures:
(a) If the Selling Group shall desire to sell Vested
Shares, Other Shares or Voting Trust Certificates, the Selling Group shall
first deliver to the Corporation a written notice, which shall be irrevocable
for a period of 30 days after delivery thereof, offering (the "Offer") all of
the Vested Shares, Other Shares or Voting Trust Certificates owned by the
Selling Group which the Selling Group desires to Sell (the "Offered
Securities") to a third party at the purchase price and on the terms specified
in the offer to Sell to such third party, whereupon the Corporation (or its
designee) shall have the right and option to purchase any or all of the Offered
Securities so offered at the purchase price and on the terms stated in the
Offer (such acceptance by the Corporation to be made by the delivery of a
written notice to the Selling Group within the 30-day period after delivery of
the aforesaid notice of intention to Sell).
(b) Sales of Offered Securities under the terms of
Section 3(a) hereof shall be made at the offices of the Corporation on a
mutually satisfactory business day within 15 days after the expiration of the
aforesaid periods. Delivery of certificates or other instruments evidencing
such Offered Securities, duly endorsed for transfer shall be made on such date
against payment of the purchase price therefore by certified or bank checks
drawn or by wire transfer.
(c) If effective acceptance shall not be received
pursuant to Section 3(a) hereof with respect to the Offered Securities, then
the Selling Group may Sell all or any part of the remaining Offered Securities
so offered for sale at price not less than the price, and on terms not more
favorable to the purchaser thereof than the terms, stated in the Offer, at any
time within 120 days after the expiration of the Offer made pursuant to Section
3(a) hereof. In the event the remaining shares of such Offered Securities are
not sold by the Selling Group during such 120-day period, the right of the
Selling Group to sell such remaining Securities shall expire and the
obligations of this Section 3 shall be reinstated; provided, however, that in
the event the Selling Group determines, at any time during such 120-day period,
that the sale of all or any part of the remaining Offered Securities so offered
on the terms set forth in the offer is impractical, the Selling Group can
terminate the offer and reinstate the procedure provided in this Section 3
without waiting for the expiration of such 120-day period.
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(d) The Selling Group may specify in an Offer pursuant to
Section 3(a) hereof with respect to Securities that are Restricted Stock that
all shares mentioned therein must be sold, in which case acceptance received
pursuant to Section 3(a) hereof shall be deemed conditioned upon (i) receipt of
a written notice of acceptance with respect to all Securities mentioned in such
Offer and/or (ii) the sale of the remaining such Securities, if any, pursuant
to Section 3(c) hereof.
(e) Anything contained herein to the contrary
notwithstanding: (i) the Initial Stockholder shall not sell any Restricted
Stock and Other Shares so long as the Voting Trust shall remain in effect; (ii)
an offer pertaining to a Voting Trust Certificate owned by the Selling Group
pursuant to Section 3(a) hereof must be with respect to the entire Voting Trust
Certificate, and not less than the entire Voting Trust Certificate; and (iii)
any purchaser of Offered Securities shall agree in writing in advance of any
purchase of Offered Securities hereunder that it, she or he, as the case may
be, shall be bound by and comply with the terms and provisions of this Section
3 and the Voting Trust as if such purchaser were the "Initial Stockholder"
hereunder, and the Offered Securities so purchased shall continue to be subject
to repurchase as herein provided in this Section 3 and the Voting Trust.
4. Legends. All certificates representing Securities issued to
the Initial Stockholder shall have affixed thereto a legend substantially in
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL TO ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER THE ACT. ADDITIONALLY, THE TRANSFER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED
PURSUANT TO THE PROVISIONS SPECIFIED IN THE AMENDED AND RESTATED
VESTING AGREEMENT DATED AS OF OCTOBER 24, 1997 BETWEEN INTERVU INC.
AND XXXXX XXXXXX, AND NO TRANSFER OF THESE SECURITIES SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF INTERVU INC.
5. Modification of Restrictions. In connection with any
subsequent debt or equity financings of the Corporation, the Initial
Stockholder shall be bound by such restrictions with respect to the Securities
(including, without limitation, lock-up provisions in connection with any
public offering of securities by the Company registered under the Securities
Act of 1933, as amended, such modifications to the provisions contained in this
Agreement as shall be made pursuant to this Section 5, or any other
restrictions determined pursuant to this Section 5), as shall be determined by:
(i) Xxxxx Xxxxxx in his sole discretion, except as otherwise provided in the
immediately following clause (ii); or (ii) in the event of the death,
Disability or mental incapacity of Xxxxx Xxxxxx, by the Initial Stockholders
holding a majority in interest of all Securities owned by the Initial
Stockholders who are parties to the Vesting Agreements; provided, however, that
Other Shares and shares of Restricted
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Stock which have become Vested Shares hereunder shall not be subject to
forfeiture, or to a call right (it being understood and agreed that a right of
first offer or a right of first refusal shall not be considered a call right
for purposes of this Agreement) in favor of the Corporation, pursuant to any
restrictions that are determined in accordance with this Section 5.
6. Voting Trust Agreement.
(a) Each of the parties hereto hereby agrees that Section
17 of the Voting Trust is hereby amended to read in its entirety as follows:
"17. Vesting Agreements. (a) The parties hereto
acknowledge and agree that certain of the shares of Common
Stock of the Company deposited with the Trustee hereunder by
each Shareholder are subject to the Amended and Restated
Vesting Agreement dated as of October 24, 1997 of such
Shareholder with the Company. The Trustee agrees to comply
with Section 2 of the Vesting Agreement of each Shareholder
with respect to the repurchase of a Shareholder's Common
Stock, as if the Trustee were the Shareholder party to such
Vesting Agreement. Anything contained herein to the contrary
notwithstanding, if any shares of Common Stock of a
Shareholder held by the Trustee hereunder are purchased by the
Company pursuant to Section 2 of the Vesting Agreement of such
Shareholder, the Trustee shall distribute the proceeds
received in respect of such shares to the Shareholder, and the
Shareholder shall deliver its voting trust certificate to the
Trustee, and the Trustee shall cancel such certificate and
issue a new voting trust certificate for the remaining shares
of Common Stock held in trust for such Shareholder.
(b) Each of the parties hereto agrees that a
Vesting Agreement (or any successor agreement or agreements
thereto entered into pursuant to Section 5 of a Vesting
Agreement) between the Company and a Shareholder shall only be
amended, changed or modified by a written agreement between
the Company and such Shareholder; provided, that any amendment
to a Vesting Agreement (or any successor agreement or
agreements thereto entered into pursuant to Section 5 of a
Vesting Agreement) which would amend, change or modify any
provision relating to the vesting, sale, transfer, or other
disposition of the securities purchased thereunder or subject
thereto (including, without limitation, Section 2 or 3 of a
Vesting Agreement) shall require: (i) the written consent of
Xxxxx Xxxxxx, in his sole discretion except as otherwise
provided in the immediately following clause (ii); (ii) in the
event of the death, Disability (as defined in the Vesting
Agreement of Xxxxx Xxxxxx) or mental incapacity of Xxxxx
Xxxxxx, the written consent of the Shareholders (including,
without limitation, the Shareholder whose Vesting Agreement,
or successor agreement or agreements thereto entered into
pursuant to Section 5 of such Vesting Agreement, is to be
amended, changed or modified)."
(b) All references in the Voting Trust to the "Stock
Purchase Agreement" of the Initial Stockholder are hereby amended to be
references to this Agreement.
(c) Section 2(a) of the Voting Trust is hereby amended in
its entirety to read as follows:
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"2. Transfer of Shares to Trustee. (a) Each Shareholder,
upon execution of this Agreement, hereby assigns and transfers
to the Trustee and deposits with the Trustee all the
certificates for such Shareholder's share of Common Stock, as
set forth opposite such Shareholder's signature to this
Agreement, and such additional shares of Common Stock as may
be set forth in any additional document or instrument in which
a Shareholder agrees to make such additional shares of Common
Stock subject to this Agreement (all of such shares being
hereinafter collectively referred to as the "Shares") for the
purpose of vesting in the
Trustee, as Trustee of an active trust, the right to vote and
act and to exercise other rights pertaining to such shares, as
and to the extent and upon the terms and conditions and for
the period set forth in this Agreement. No shares shall be
deposited hereunder except shares having general voting
powers, as provided in the Certificate of Incorporation of the
Company. All such share certificates shall be endorsed, or
accompanied by such instruments of transfer, as to enable the
Trustee to cause such certificates to be transferred into the
name of the Trustee, as hereinafter provided. On receipt by
the Trustee of the certificates for any such shares and the
transfer of the same into the name of the Trustee, the Trustee
shall issue and deliver to each Shareholder voting trust
certificates for the shares so deposited. Shares so deposited
with the Trustee will be held by the Company at its principal
office in safekeeping for the Trustee."
(d) Anything contained herein to the contrary
notwithstanding, the parties hereto hereby acknowledge and agree that: (a) the
Restricted Stock held by the Initial Stockholder hereunder has been deposited
with the Trustee pursuant to the terms and provisions of the Voting Trust; (b)
the Initial Stockholder and Corporation shall be bound by, and shall comply
with, all terms of the Voting Trust; (c) the Trustee shall be authorized to
comply with the provisions of Section 2 of this Agreement; and (d) this
Agreement is subject to the Voting Trust, and in the event of any conflict
between this Agreement and the Voting Trust, the Voting Trust shall control.
7. Effects of Completion of Qualifying IPO. Notwithstanding
anything contained herein, in that certain Restricted Stock Purchase Agreement
dated as of March 5, 1996 between the Corporation and the Initial Stockholder
or elsewhere, upon the successful completion of an initial public offering of
the Company's securities registered under the Securities Act of 1933, as
amended (the "Act"), which results in gross proceeds to the Company (before
deduction of underwriting discounts or commissions) of at least $7,500,000 (a
"Qualifying IPO"), Sections 3 and 5 hereof shall terminate automatically and
have no further force or effect. In addition, upon completion of a Qualifying
IPO, clauses (i) and (ii) of Section 1(c) hereof shall be deemed to be deleted
and shall have no further force or effect. In the event of the occurrence,
following a Qualifying IPO, of (i) a merger or acquisition in which the
Corporation is not the surviving entity, the sale, transfer or other
disposition of all or substantially all of the assets of the Corporation or any
reverse merger in which the Corporation is the surviving entity but in which
fifty percent (50%) or more of the Company's outstanding voting stock is
transferred to holders different from those who held the stock immediately
prior to such merger and (ii) within one (1) following any transaction
contemplated by the preceding clause (i), the Initial Stockholder is terminated
without cause or his annual cash compensation is reduced, Section 2 hereof
shall terminate, with all shares of Restricted Stock immediately fully vesting
and being no longer subject to repurchase by the Company. Initial Stockholder
further agrees, subject to successful completion of a Qualifying IPO, that in
connection with a subsequent underwritten public offering of Common Stock or
other securities of the Company to be registered on a registration statement
filed under the Act, he will enter into an agreement (to the extent requested
by the Company
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and the Company's underwriter) to the effect that he will not sell or otherwise
transfer or dispose of shares of Common Stock or other securities of the
Company during the period specified by the Company and such underwriter;
provided however that (i) such period shall not exceed 90 days; (ii) all of the
directors and executive officers of the Company and all of the Initial
Stockholders enter into similar agreements; and (iii) the covenant set forth in
this sentence shall only remain in effect for the three-year period immediately
following the closing date of a Qualifying IPO and shall thereafter terminate
and have no force or effect.
8. Notices. All notices or other communications which are
required or permitted hereunder shall be deemed to be sufficient if contained
in a written instrument given by personal delivery, telex, facsimile (with a
confirmation copy sent by first class certified or registered United States
mail), telegram, air courier, or first class certified or registered United
States mail, postage prepaid, return receipt requested, addressed to such party
at the address set forth below or such other address as may thereafter be
designated in writing by the addressee to the addressor listing all parties:
if to Corporation, to:
InterVU Inc.
000 Xxxxx Xxxxx Xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
if to Initial Stockholder, to:
Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
All such notices, advices and communications shall be deemed to have been
delivered and received (a) in the case of personal delivery, telex, facsimile
(with a confirmation copy sent by first class certified or registered United
States mail) or telegram on the date of such delivery, (b) in the case of air
courier on the business day after the date when sent, and (c) in the case of
mailing, on the third business day following the date of such mailing.
9. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
agreements made and to be performed wholly therein.
10. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and supersedes all previously written or oral negotiations,
commitments, representations and agreements.
11. Execution in Counterpart. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
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12. Amendments and Modifications. This Agreement shall only be
amended, changed or modified as specified in Section 17 of the Voting Trust.
13. Successors and Assigns. The Agreement shall be binding upon
the successors and assigns of the parties; provided, however, that this
Agreement shall not be assignable by the Initial Stockholder except to the
extent permitted herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above written.
INTERVU INC.
By: /s/ XXXXX XXXXXX
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Name:
Title: Chief Executive Officer
INITIAL STOCKHOLDER:
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
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INITIAL STOCKHOLDER'S SPOUSE:
The undersigned hereby accepts and agrees to all of the terms and conditions of
this Agreement to the extent the undersigned has, or may have, any ownership or
other interest in the Securities:
/s/ XXXXXXXX XXXXXX
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Name:______________________________
Address: __________________________
__________________________
XXXXX XXXXXX, AS TRUSTEE, PURSUANT TO THE VOTING TRUST AGREEMENT DATED AS OF
AUGUST 28, 1995:
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
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