1
EXHIBIT 4.3
IMMERSION CORPORATION
COMMON STOCK GRANT AND PURCHASE AGREEMENT AND PLAN
THIS COMMON STOCK GRANT AND PURCHASE AGREEMENT AND PLAN (the
"AGREEMENT") is made and entered into effective as of July 6, 1999 (the
"EFFECTIVE DATE") by and between Immersion Corporation, a California corporation
(the "COMPANY"), and Xxxxxxx Xxxxx & Associates ("Xxxxx").
1. GRANT OF STOCK BONUS; CONSIDERATION; ISSUANCE OF SHARES. The
IMMERSION hereby grants, sells and agrees to issue, subject to the provisions of
this Agreement, 85,000 shares of common stock of IMMERSION (the "SHARES"), with
a current fair market value of $2.95 per share, or $250,750 total, to Xxxxx, in
consideration for the past services of Xxxxx, actually rendered to IMMERSION or
for its benefit. Xxxxx hereby accepts the grant of and purchases the Shares,
subject to the provisions of this Agreement. No further consideration shall be
required of Xxxxx in connection with the receipt of the Shares, and the Board of
Directors of IMMERSION (the "BOARD") has determined by resolutions adopted on
the Effective Date that the value of the past services for which the Shares are
granted hereunder is at least equal to the fair market value of the Shares. The
Shares granted hereunder are fully vested.
2. ENTIRE AGREEMENT. This Agreement and the letter dated June 29, 1999
from the Xxxxx to IMMERSION (the "Letter") constitute the entire Agreement of
IMMERSION and Xxxxx with respect to executive recruiting services specified in
the Letter and supersedes all prior agreements and understandings, both written
and oral, between IMMERSION and Xxxxx with respect to the subject matter
thereof. This Agreement constitutes the entire agreement with respect to the
stock grant referred to in Paragraph VII, Sections A and E and fulfills
IMMERSION's obligations with respect thereto.
3. SECURITIES LAW COMPLIANCE. In connection with the issuance of the
Shares, Xxxxx hereby agrees, represents and warrants as follows:
3.1 Xxxxx is acquiring the Shares solely for its own account for
investment and not with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933 as amended
(the "SECURITIES ACT"). Xxxxx further represents that it does not have any
present intention of selling, offering to sell or otherwise disposing of or
distributing the Shares or any portion thereof; and that the entire legal and
beneficial interest of the Shares acquired is being acquired for, and will be
held for the account of, Xxxxx only and neither in whole nor in part for any
other person. Xxxxx has the full right, power and authority to enter into and
perform this Agreement.
3.2 Xxxxx acknowledges and understands that the Shares have not been
registered under the Securities Act or qualified under the California
Corporations Code, and that consequently the Shares must be held indefinitely
unless they are subsequently registered under the Securities Act and qualified
under the California Corporations Code, an exemption from such
1
2
registration is available, or they are sold in accordance with Rule 701 and Rule
144 promulgated under the Securities Act. Xxxxx further acknowledges and
understands that IMMERSION is under no obligation to register the Shares and
that, in the absence of registration, the Shares may not be transferred. Xxxxx
understands that the certificate or certificates evidencing the Shares will be
imprinted with legends which prohibit the transfer of the Shares unless (i) they
are registered or (ii) Xxxxx has notified IMMERSION of the proposed distribution
and such registration is not required in the opinion of legal counsel
satisfactory to IMMERSION. Xxxxx does not have any contract, undertaking,
agreement, or arrangement with any person to sell, transfer, or grant
participants to such person or to any third person with respect to any of the
Shares.
3.3 Xxxxx is aware that Rules 701 and 144, promulgated under the
Securities Act, which permit limited public resale of securities acquired in a
nonpublic offering, are not currently available with respect to the Shares and,
in any event, are available only if certain conditions are satisfied. Xxxxx
understands that any sale of the Shares that might be made in reliance upon Rule
144 may only be made in limited amounts in accordance with the terms and
conditions of such rule and that a copy of Rule 144 will be delivered to Xxxxx
upon request.
3.4 Xxxxx was not presented with or solicited by any form of general
solicitation or general advertising, including, but not limited to, any
advertisement, article, notice, or other communication published in any
newspaper, magazine, or similar media, or broadcast over television, radio or
similar communications media, or presented at any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
3.5 Xxxxx has either (a) a preexisting personal or business
relationship with IMMERSION or any of its officers, directors, or controlling
persons, consisting of personal or business contacts of a nature and duration to
enable Xxxxx to be aware of the character, business acumen and general business
and financial circumstances of the person with whom such relationship exists, or
(b) such knowledge and experience in financial and business matters (or has
relied on the financial and business knowledge and experience of Xxxxx'x
professional advisor who is unaffiliated with and who is not, directly or
indirectly, compensated by IMMERSION or any affiliate or selling agent of
IMMERSION) as to make Xxxxx capable of evaluating the merits and risks of an
investment in the Shares and to protect Xxxxx'x own interests in the
transaction, or (c) both such relationship and such knowledge and experience.
3.6 Xxxxx understands that the Shares have not been qualified under
either the Corporate Securities Law of 1968, as amended, of the State of
California by reason of a specific exemption therefrom, which exemption depends
upon, among other things, the bona fide nature of Xxxxx'x representations as
expressed herein. Xxxxx understands that IMMERSION is relying on Xxxxx'x
representations and warrants that IMMERSION is entitled to rely on such
representations and that such reliance is reasonable.
4. INDEPENDENT CONTRACTOR RELATIONSHIP. Xxxxx and IMMERSION understand,
acknowledge and agree that Xxxxx'x relationship with IMMERSION is that of an
independent
2
3
contractor and nothing in this Agreement is intended to or should be construed
to create a partnership, joint venture or employment relationship.
5. RESTRICTIONS ON TRANSFER OF SHARES. No Shares acquired pursuant to
this Agreement may be sold, exchanged, transferred (including, without
limitation, any transfer to a nominee or agent of Xxxxx), assigned, pledged,
hypothecated or otherwise disposed of, including by operation of law, in any
manner which violates any of the provisions of this Agreement and any such
attempted disposition shall be void. The IMMERSION shall not be required (a) to
transfer on its books any shares which will have been transferred in violation
of any of the provisions set forth in this Agreement or (b) 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 will have been so transferred.
6. REGISTRATION RIGHTS. If, during any period that Xxxxx is not
eligible to sell Shares in reliance upon Rule 144, IMMERSION (other than in
consequence of or related to the exercise of demand registration rights by
holders of IMMERSION's securities having demand registration rights and other
than with respect to IMMERSION's registration of shares in connection with its
initial public offering) shall determine to register any of its securities under
the Securities Act for its own account (other than a registration relating to
employee stock option or purchase plans, or a registration on Securities and
Exchange Commission ("SEC") Form S-4 relating to an SEC Rule 145 transaction, or
a registration on any form other than SEC Forms X-0, X-0 or S-3, or their
successor forms or any successor to such forms, which does not include
substantially the same information as would be required to be included in a
registration covering the sale of the Shares) IMMERSION will promptly give to
Xxxxx written notice thereof; and include in such registration statement, and in
any underwriting involved therein, all the Shares specified in a written
request, made within thirty (30) days after receipt of such written notice from
IMMERSION, by Xxxxx, except as set forth in this Section 6. If the
registration of which IMMERSION gives notice is for a registered public
offering involving an underwriting, IMMERSION shall so advise Xxxxx as a part
of the written notice given pursuant to this Section 6. In such event the right
of Xxxxx to registration pursuant to this Section 6 shall be conditioned upon
Xxxxx'x participation in such underwriting and the inclusion of Xxxxx'x Shares
in the underwriting to the extent provided herein. Xxxxx shall (together with
IMMERSION and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by IMMERSION.
Notwithstanding any other provision of this Section 6, the underwriter may limit
the number of Shares and other securities of IMMERSION held by shareholders
(other than Xxxxx) having contractual rights to registration to be included in
the registration and underwriting ("REGISTRABLE SECURITIES"), or may exclude
Registrable Securities, Shares and the shares of officers, directors and
advisors ("ADDITIONAL SHARES") entirely from such registration and underwriting.
The IMMERSION shall so advise all holders of Registrable Securities, Shares and
Additional Shares which would otherwise be registered and underwritten pursuant
hereto, and the number of Registrable Securities, Shares and Additional Shares
of such holders that may be included in the registration and underwriting shall
be allocated among holders requesting registration in proportion, as nearly as
practicable, to the respective amounts of shares held by each of such holders as
of the date of the notice pursuant to this Section 6, subject to the
3
4
provisions of this Section 6. If IMMERSION disapproves of the terms of any
such underwriting, IMMERSION may elect to withdraw therefrom by written notice
to IMMERSION and the underwriter. Any Shares excluded or withdrawn from such
underwriting shall be withdrawn from such registration. The rights contained in
this Section 6 shall not be assignable without the consent of IMMERSION.
7. FURTHER INSTRUMENTS. The parties hereto agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
8. NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given (except to the extent that this
Agreement provides for effectiveness only upon actual receipt of such notice)
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 at the address shown below that party's signature or at such other
address as such party may designate in writing from time to time to the other
party.
9. BINDING EFFECT. This Agreement shall inure to the benefit of the
successors and assigns of IMMERSION and, subject to the restrictions on
transfer herein set forth, be binding upon Xxxxx and Xxxxx'x heirs, executors,
administrators, successors and assigns.
10. CERTIFICATE REGISTRATION. The certificate or certificates for the
Shares acquired pursuant to this Agreement shall be registered in the name of
Xxxxx.
11. AMENDMENTS. No amendment or addition to this Agreement shall be
effective unless in writing signed by IMMERSION.
12. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of California as such laws are applied to agreements between California
residents entered into and to be performed entirely within the State of
California.
4
5
IN WITNESS WHEREOF, the parties hereto have as of the Effective Date
first written above caused this Common Stock Grant and Purchase Agreement and
Plan to be executed.
Immersion Corporation,
a California corporation
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx,
Chief Financial Officer
Address: 0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx represents that Xxxxx is familiar with the terms and provisions
of this Agreement and hereby accepts the Shares subject to all of the terms and
provisions thereof.
XXXXXXX XXXXX & ASSOCIATES
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxx
------------------------
Address: 0000 Xxxxxxxx Xxxx
--------------------------
Suite 260
--------------------------
Xxxxxxxx, XX 00000
--------------------------
5
