Exhibit 10.30
STOCK PURCHASE AGREEMENT
This Agreement (the "Agreement") is entered into as of the 8th day of
April, 2002 (the "Effective Date") by and between BNS Co., a Delaware
corporation ("BNS"), and Xygent Inc., a Delaware corporation ("Xygent").
WITNESSETH:
WHEREAS, as of the Effective Date, there are 400,000 authorized shares of
Common Stock, par value $0.01 (the "Common Stock"), of which 120,048 shares are
issued and outstanding, of which 20,048 shares are owned of record by Xxxxx &
Xxxxxx, Inc. (formerly known as Hexagon (Rhode Island), Inc.) ("Xxxxx & Xxxxxx")
and 100,000 are owned of record by BNS;
WHEREAS, by action of even date herewith, Xygent has adopted the Xygent,
Inc. 2002 Equity Incentive Plan (the "Plan") to provide an incentive to
employees of and other providers of services to Xygent through the award of
options to acquire Stock and other Stock-based incentives (each, an "Award");
WHEREAS, a total of 30,300 shares of Stock have been reserved for issuance
under the Plan; and
WHEREAS, it is the intent and agreement of Xygent, BNS and Xxxxx & Xxxxxx
that of the total of 30,300 shares of Stock reserved for issuance under the
Plan, 11,000 shares of Stock (the "BNS Reserve") be made available to Xygent by
BNS, such that the dilution resulting from the exercise of options for more than
19,300 shares will be borne solely by BNS, and not by Xxxxx & Xxxxxx and BNS, on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, BNS and Xygent agree as follows:
1. Right of Purchase or Repurchase. From and after the Effective Date and
until termination of this Agreement (the "Exercise Period"), Xygent
shall have the right, exercisable as hereinafter set forth, to
purchase and acquire from BNS shares of Stock up to, from time to
time, the BNS Reserve. During the Exercise Period, Xygent may exercise
its purchase right as follows:
a. Number of Shares Purchasable. If, at the time of delivery of any
Stock pursuant to an Award (the "Award Shares"), the total number
of shares of Stock then actually issued and outstanding under the
Plan (taking into account the Award Shares) exceeds 19,300 (the
"Issuance Limit"), Xygent shall be entitled to purchase and
acquire from BNS up to the lesser of (i) the amount of such
excess (expressed in shares of Stock), or (ii) the BNS Reserve
reduced by the number of shares of Stock, if any, previously
acquired by Xygent from BNS pursuant to this Agreement and
increased by the number of shares of Stock, if any, previously
purchased by BNS from Xygent pursuant to Section 2 below.
b. Purchase Price. The purchase price for any shares purchased by
Xygent from BNS pursuant to this Agreement in connection with the
issuance of Award Shares shall be the exercise price or other
amount ("exercise price"), if any, paid by the Plan participant
or beneficiary for the Award Shares. If, in connection with any
delivery of Award Shares, the total number of shares purchasable
by Xygent under Section 1(a) above is less than the total number
of such Award Shares, the purchase price payable by Xygent to BNS
shall be determined by ranking the Award Shares in the order of
the exercise price, if any, paid for those shares, starting with
the highest such price, and by assuming that the shares
purchasable by Xygent under Section 1(a) above correspond to the
Award Shares in the same order of ranking (i.e., starting with
those with the highest exercise price).
2. Special Rule for Restricted Stock. If any shares of Stock delivered
with respect to an Award are then or thereafter subject to a risk of
forfeiture, Sections 1(a) and 1(b) above shall be applied at the time
of delivery; provided, that if any of such shares is later forfeited
to Xygent (a "Forfeited Share"), the following special rules shall
apply. If, immediately prior to the forfeiture of any Forfeited
Shares, the total number of shares of Stock then issued and
outstanding under the Plan (including the Forfeited Shares) exceeds
the Issuance Limit, Xygent shall offer for sale to BNS, and BNS shall
have the right to purchase, that number of shares of Stock which
equals the excess of the number of Forfeited Shares over the Issuance
Limit. The purchase price payable by BNS to Xygent with respect to any
Forfeited Share shall be the exercise or other purchase price, if any,
that was paid to Xygent under the Plan for such Forfeited Share. If,
in connection with any forfeiture of Forfeited Shares giving rise to a
BNS repurchase right described in this Section 2, the total number of
Forfeited Shares is less than the number of shares as to which BNS has
a repurchase right, BNS' repurchase right shall be deemed to pertain
to those Forfeited Shares as to which the original exercise or
purchase price was lowest (including zero, if the Forfeited Shares
included any that were awarded without the payment of any exercise or
purchase price). For purposes of this Section 2, a share of Stock will
be deemed to be subject to a risk of forfeiture if it would be deemed
to be subject to a "substantial risk of forfeiture" under Section 83
of the Internal Revenue Code and the regulations thereunder (whether
or not it was originally transferred subject to such a risk), and the
term "forfeiture" shall have the same meaning as under Section 83 of
the Internal Revenue Code and the regulations thereunder. Any shares
of Stock repurchased by BNS pursuant to this Section 2 shall be
subject to Xygent's purchase right set
-2-
forth in Section 1, provided that any repurchased shares will not
increase the total BNS Reserve.
3. Required Notice. Xygent shall promptly notify BNS of any delivery of
shares of Stock under the Plan that might give rise to a purchase
right under Section 1 and of any forfeiture of shares that might give
rise to a repurchase right under Section 2. Each such notice shall
include information concerning the number of shares of Stock then or
previously delivered or forfeited, the exercise or other purchase
price, if any, with respect to such shares, and other details
necessary to determine the rights of the parties hereto. A copy of the
notice delivered to BNS under this Section will be sent to Xygent.
4. Exercise Period. The right of Xygent or BNS to purchase or repurchase
any shares of Stock under this Agreement shall be exercisable only
during the period commencing on the "accrual date" (as hereinafter
defined) and ending on the earlier of (i) the date of termination of
this Agreement, or (ii) the date which is ninety (90) days after the
accrual date. The "accrual date" with respect to any right of Xygent
to purchase shares of Stock under Section 1 is the later of (i) the
delivery of shares of Stock under the Plan that gives rise to such
right, or (ii) the effective date of notice under Section 3 from
Xygent to BNS with respect to such delivery. The accrual date with
respect to any right of BNS to repurchase shares of Stock under
Section 2 is the date of the forfeiture of shares of Stock that gives
rise to such right. Notwithstanding the first sentence of this Section
4, BNS' repurchase right with respect to any forfeiture of shares of
Stock under the Plan shall in no event terminate earlier than thirty
(30) days following the effective date of the required notice by
Xygent to BNS with respect to such forfeiture.
5. Exercise of Right. At any time within the exercise period described at
Section 4 above, Xygent or BNS, as the case may be, may exercise its
right of purchase or repurchase by delivering notice to the other
party accompanied by payment in full of the purchase or repurchase
price, if any, in cash, cashier's or bank check, or other
consideration acceptable to the selling party, whereupon the selling
party shall promptly take all necessary steps to deliver to the
exercising party the shares of Stock so purchased or repurchased.
6. Adjustment for Stock Splits, etc. The rights and obligations of the
parties to this Agreement shall be appropriately adjusted to reflect
any positive or reverse stock split, stock dividend or other change in
capitalization affecting the Stock or the price of the Stock.
7. Notice. All notices or other communications to a party required or
permitted hereunder will be in writing and will be delivered
personally or by facsimile (receipt confirmed) to such party (or, in
the case of an entity,
-3-
to an executive officer of such party) or will be given by certified
mail, postage prepaid with return receipt requested, addressed as
follows:
For notice to BNS:
BNS Co.
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Fax No: (000) 000-0000
Attention: Chief Executive Officer
For notice to Xygent:
Xygent Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Fax No: (000) 000-0000
Attention: President
For notices to Xxxxx & Xxxxxx:
Xxxxx & Xxxxxx, Inc.
c/o Hexagon AB
XX Xxx 0000
XX-000 00 Xxxxx Xxxxxx
Xxxxxx
Fax: 00 0 000 0000
Attention: President
All notices will be deemed given on the day when actually delivered as
provided above (if delivered personally or by facsimile) or on the day
shown on the return receipt (if delivered by mail). Any party may
change their respective above-specified recipient and/or mailing
address by notice to the other party given in the manner herein
prescribed.
8. Term of Agreement; Merger, etc. of Xygent.
a. Termination. This Agreement shall terminate upon the earliest to
occur of the following: (i) any liquidation or dissolution of BNS
unless in connection with such event BNS' rights and obligations
hereunder are transferred to an acquiring or surviving entity or
an affiliate thereof, or (ii) any merger, sale of all or
substantially all assets, consolidation or sale of Stock
effecting a change of control of Xygent, or any liquidation or
dissolution of Xygent, unless in connection therewith outstanding
Awards are assumed (or new awards substituted therefor) by an
acquiring or surviving entity or an affiliate thereof and this
agreement is likewise so assumed, or
-4-
(iii) the day after the last date that any Award which could be
issued under the Plan could have been exercised. In the event of
a liquidation or dissolution described in clause (i), unless such
liquidation or dissolution shall occur after this Agreement has
already terminated, BNS shall give Xygent adequate advance notice
of the liquidation or dissolution and Xygent shall thereupon have
the right to purchase from BNS, at a purchase price per share
equal to the average per-share exercise price of all stock option
Awards then outstanding, any number of shares of Stock held by
BNS up to the maximum that Xygent could have purchased if all
then outstanding stock option Awards had been exercised. If, upon
or prior to an event described in clause (ii), outstanding Awards
are accelerated and result in the delivery of shares of Stock
that would entitle Xygent to purchase shares from BNS pursuant to
Section 1 above, the notice and exercise provisions of this
Agreement shall be deemed modified so as to enable Xygent (unless
this Agreement shall earlier have terminated) to exercise its
purchase right in advance of the transaction, subject to a return
to BNS of any shares so purchased if the transaction is not
consummated. If, in connection with an event described in clause
(ii), outstanding shares of restricted Stock issued under the
Plan are forfeited, the notice and exercise provisions of this
Agreement shall likewise be deemed modified, and Xygent shall
provide such adequate advance notice as is necessary, to ensure
that BNS (unless this Agreement shall earlier have terminated)
has the opportunity to exercise its repurchase right in advance
of the transaction, subject to a return to Xygent of any shares
so repurchased if the transaction is not consummated.
b. Merger, etc. of Xygent. If, in connection with a merger, sale of
all or substantially all assets, consolidation or sale or Stock
affecting Xygent in connection with which outstanding Awards are
assumed (or new awards substituted therefor) by an acquiring or
surviving entity or an affiliate thereof (the "acquisition
issuer"), the following special rules shall apply: (A) BNS'
obligations under this Agreement shall be limited to those Awards
that are outstanding immediately following the transaction (or
equivalent awards issued in substitution therefor); (B) BNS'
obligations hereunder shall be limited to the securities, if any,
of the acquisition issuer that it receives in the transaction
with respect to those shares of Stock held by BNS that would have
been subject to Xygent's purchase right hereunder had the
transaction not taken place and had all stock option Awards
outstanding at the time of the transaction been exercised; and
(C) if, in connection with the transaction, securities of an
acquisition issuer are substituted for restricted Stock, such
securities shall be treated as Stock for purposes of Section 2
above and Section 2 shall be applied (subject
-5-
to such adjustments as are necessary to reflect the transaction
and the exchange of securities in connection therewith) in
connection with any later forfeiture of such securities.
9. Transfer of the BNS Reserve Shares. Except as contemplated by this
Agreement, BNS shall not dispose (whether by sale, assignment, gift,
pledge, encumbrance or otherwise) of the shares then subject to the
BNS Reserve unless the transferee of such shares agrees in writing to
be bound by all of the provisions of this Agreement to which BNS is
bound.
10. Binding Effect; Assignment. The rights and the interests of Xygent
under this Agreement cannot be assigned without the prior written
consent of BNS. Subject to the foregoing, this Agreement shall be
binding upon each of BNS and Xygent and their respective successors
and assigns.
11. Amendment and Waiver. Subject to Section 8, the parties hereto may
amend, modify, terminate, waive or consent to any provision of this
Agreement if such amendment, modification, termination, waiver or
consent is set forth in a writing signed by the parties hereto.
Notwithstanding the foregoing, Xxxxx & Xxxxxx must consent (which
consent will not be unreasonably withheld) to any amendment to this
Agreement which affects the BNS Reserve, the number of shares which
are Xygent may purchase under the Agreement, the purchase price (as
set forth in Section 1(b)) or the repurchase option set forth in
Section 2 with respect to restricted stock, or any amendment to this
Section 11.
12. Headings; Counterparts. Section headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given
any substantive effect. This Agreement may be executed in counterparts
and all such counterparts shall constitute one and the same
instrument.
13. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement and
the subject matter hereof and all disputes arising under or based on
this Agreement or the entering into or termination of this Agreement
(any such dispute, a "Dispute") will be governed by and construed in
accordance with the laws of the State of Rhode Island without regard
to its conflicts of laws principles. Each of the parties irrevocably
and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Rhode Island for any Dispute, and each
of the parties agrees not to commence any action, suit or proceeding
relating to a Dispute except in such courts. Each of the parties
irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of any Dispute in
the courts of the State of Rhode Island and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
-6-
Each party irrevocably waives all rights to a trial by jury with
respect to any such action, suit or proceeding.
14. Specific Enforcement. Each party acknowledges that the other party
would be irreparably damaged in the event that any of the covenants
were not performed by it in accordance with their specific terms or
were otherwise breached. Therefore, the parties agree that each party
shall be entitled to an injunction or injunctions (without the
requirement of having to post a bond) to prevent breaches of such
covenants and to specifically enforce such covenants, in addition to
any other remedy to which such party may be entitled to at law or in
equity.
15. Severability. Should any part of this Agreement, for any reason, be
declared invalid by a court of competent jurisdiction, such decision
shall not affect the validity of any remaining portion, which
remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid portion eliminated.
16. Entirety. This Agreement embodies the entire agreement among the
parties and supersedes all prior agreements and understandings, if
any, relating to the subject matter hereof.
[the remainder of the page is intentionally left blank]
-7-
IN WITNESS WHEREOF, BNS Co. and Xygent Inc. have caused this instrument to
be executed by their respective officers thereunto duly authorized, all as of
the date first set forth above.
XYGENT INC. BNS Co.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------ ------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: President and CEO Title: President and CEO
-8-
