EXHIBIT 10.06
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement dated as of February 25, 2000 (this
"Agreement"), is made and entered into by and between DoveBid, Inc, a Delaware
corporation, (the "Corporation"), Xxxx Xxxx (the "Founder") and The Dove
Holdings Corporation, a California corporation ("Holdings"). Certain capitalized
terms used in this Agreement are defined in Section 13 below.
The parties hereto agree as follows:
Section 1. Repurchase Right.
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(a) Of the 21,754,802 shares of Common Stock now owned by Holdings,
Holdings and the Founder agree that 19.444% of such shares of Common Stock or
4,230,004 shares held by Holdings (the "Vesting Shares") will be subject to the
following repurchase right exercisable by the Corporation.
(b) In the event that the Founder's employment with the Corporation
is terminated by a Voluntary Termination or for Cause, the Corporation shall
have the right (the "Repurchase Right"), but not the obligation, to repurchase a
number of Vesting Shares equal to the total number of all the Vesting Shares
multiplied by a fraction, (i) the numerator of which shall be 28 minus the
number of full calendar months between the Starting Date and the termination of
Founder's employment and (ii) the denominator of which shall be 28. The number
of Vesting Shares shall be appropriately adjusted to reflect all stock splits,
stock dividends and recapitalizations effected after the date hereof.
(c) The purchase price for any and all Vesting Shares repurchased by
the Corporation pursuant to this Agreement shall be $0.33 per share, as
appropriately adjusted to reflect all stock splits, stock dividends and
recapitalizations effected after the date hereof.
(d) If the Corporation elects to exercise the Repurchase Right, the
Corporation will have 90 days following such termination of Founder's employment
to notify Founder and Holdings and close the repurchase transaction. The
Corporation's notice to Founder and Holdings shall state the number of Vesting
Shares it elects to repurchase and the day and time for settlement and closing
of the transaction, which shall take place at the offices of the Corporation.
(e) Upon delivery of such notice and payment of the purchase price,
the Corporation shall become the legal and beneficial owner of the Vesting
Shares being repurchased and all rights and interest therein or related thereto,
and the Corporation shall have the right to transfer to its own name or the name
of its assignee the Vesting Shares being repurchased by the Corporation, without
further action by Founder.
(f) Notwithstanding the foregoing, the occurrence of any of the
following shall cancel the Repurchase Right:
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(i) the death of the Founder;
(ii) any disability of the Founder that renders impossible the
fulfillment of Founder's duties as an employee of the Corporation and
continues for a period greater than 6 months;
(iii) any breach of this Agreement by the Corporation;
(iv) the closing of an Acquisition; or
(v) if the Founder's employment with the Corporation is
terminated by the Corporation without Cause or by the Founder for Good
Reason.
(g) In the event of a conflict between the provisions of this
Agreement and that certain Amended and Restated Stockholders' Agreement of even
date herewith among the Corporation, Holder and certain of the Corporation's
stockholders, the provisions of the Stockholders' Agreement shall control.
Section 2. Escrow. Each of the Founder and Holdings shall escrow the
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Founder Vesting Shares and the Holdings Vesting Shares, respectively, with the
Secretary or Assistant Secretary of the Corporation and shall deliver to the
Secretary or Assistant Secretary the fully executed Escrow Instructions in the
form of Exhibit A hereto (the "Escrow Instructions"), together with three
Assignments Separate from Certificate in the form of Exhibit B hereto, to be
executed in blank (pursuant to the Escrow Instructions), to permit a transfer of
Vesting Shares if the Corporation exercises its Repurchase Right.
Section 3. Adjustments. If from time to time, during the term of the
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Repurchase Right, there is any change affecting the Corporation's outstanding
Common Stock as a class that is effected without receipt of consideration by the
Corporation (through merger, consolidation, reorganization, reincorporation,
stock dividend, dividend of property other than stock, stock split, reverse
split or other transaction), then any new, substituted or additional securities
or other property to which Founder or Holdings is entitled as a holder of the
Vesting Shares, which remain subject to the Repurchase Right, shall be added to
the escrow and subject to the same treatment as the Vesting Shares.
Section 4. Ownership Rights. Each of the Founder and Holdings shall be
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deemed to be the record and beneficial owner of the Founder Vesting Shares and
the Holdings Vesting Shares, respectively, for all purposes, including the right
to vote such Vesting Shares, except to the extent any of such Vesting Shares are
repurchased by the Corporation pursuant to the Repurchase Right.
Section 5. Limitations on Transfer. In addition to any other limitation
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on transfer created by applicable securities laws, the Corporation's bylaws or
other agreements, each of the Founder and Holdings shall not assign,
hypothecate, donate, pledge, encumber or otherwise dispose of any interest in
the Vesting Shares to the extent the Vesting Shares are subject to the
Repurchase Right.
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Section 6. Restrictive Legends. All certificates representing the Vesting
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Shares subject to the Repurchase Right shall have endorsed thereon a legend in
substantially the following form (in addition to any other legend which may be
required by law or by other agreements):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
AN OPTION SET FORTH IN A STOCK REPURCHASE AGREEMENT BETWEEN
THE CORPORATION AND THE REGISTERED HOLDER, OR SUCH HOLDER'S
PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THIS COMPANY. ANY TRANSFER OR ATTEMPTED
TRANSFER OF ANY SHARES SUBJECT TO SUCH OPTION IS VOID
WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF THE
CORPORATION."
Section 7. Refusal to Transfer. The Corporation shall not be required (a)
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to transfer on its books any shares of Vesting Shares of the Corporation which
shall 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
shall have been so transferred.
Section 8. No Employment Rights. This Agreement is not an employment
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contract and nothing in this Agreement shall affect in any manner whatsoever the
right or power of the Corporation (or a parent or subsidiary of the Corporation)
to terminate Founder's employment for any reason at any time, with or without
cause and with or without notice.
Section 9. Specific Performance. It is the intention of the parties that
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the Corporation, upon exercise of the Repurchase Right and payment of the
repurchase amount, pursuant to the terms of this Agreement, shall be entitled to
receive the Vesting Shares, in specie, in order to have such Vesting Shares
available for future issuance without dilution of the holdings of other
stockholders. Furthermore, it is expressly agreed among the parties hereto that
money damages are inadequate to compensate the Corporation for the Vesting
Shares and that the Corporation shall, upon proper exercise of the Repurchase
Right, be entitled to specific enforcement of its rights to purchase and receive
the portion of the Vesting Shares it has repurchased.
Section 10. Assignment. The Corporation may assign its rights under this
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Agreement to any stockholder of the Corporation upon notice to the Founder and
Holdings.
Section 11. Notices. All notices, requests, consents and other
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communications required or permitted hereunder shall be in writing and shall be
deemed to have been given for all purposes upon (i) personal delivery, (ii) one
day after being sent, when sent by professional overnight courier service from
and to locations within the United States, (iii) five days after posting when
sent by registered or certified mail, or (iv) on the date of transmission when
sent by facsimile and when receipt has been confirmed, addressed (A) if to
Company at the address or facsimile number, as applicable set forth on the
signature pages hereto; or (B) if to the Founder, addressed to the Founder at
his address or facsimile number, as applicable, as shown on the stock register
maintained by Company; or (B) if to Holdings, addressed to Holdings, at its
address or facsimile number, as
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applicable, as shown on the stock register maintained by Company.
Notwithstanding any provision hereof to the contrary, any notice to Holdings
shall be deemed a notice to the Founder and any notice to the Founder shall be
deemed a notice to Holdings. The addresses for the purposes of this Section 12
may be changed by giving written notice of such change in the manner provided
herein for giving notice. Unless and until such written notice is received, the
address provided herein shall be deemed to continue in effect for all purposes
hereunder.
Section 12. Miscellaneous. This is the entire agreement of the parties
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regarding the subject matter of this Agreement. This Agreement may only be
modified or terminated by a written instrument duly authorized by the board of
directors of the Corporation and signed by Founder, Holdings and an authorized
representative of the Corporation. This Agreement shall be governed by
California law, without reference to its principles of conflict of laws.
Section 13. Definitions. As used herein the following capitalized terms
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have the respective meanings assigned below.
An "Acquisition" means (i) the acquisition by any person or entity,
directly or indirectly, from the stockholders of the Corporation, beneficially
or of record, securities of the Corporation representing fifty (50%) percent of
the total voting power of all its then outstanding voting securities, (ii) a
merger or consolidation of the Corporation in which the Corporation's voting
securities immediately prior to the merger or consolidation do not represent, or
are not converted into securities that represent, a majority of the voting power
of all voting securities of the surviving entity immediately after the merger or
consolidation or (iii) a sale of substantially all of the assets of the
Corporation or a liquidation or dissolution of the Corporation.
"Cause" with respect to the Founder, means any of the following: (i) gross
negligence or willful misconduct in the performance of the Founder's duties to
the Corporation (other than as a result of death or a disability) that has
resulted or is likely to result in substantial and material damage to the
Corporation, after a written demand for substantial performance is delivered to
the Founder by the Board of Directors which specifically identifies the manner
in which the Board believes the Founder has not substantially performed the
Founder's duties and the Founder has been provided with a reasonable opportunity
to cure any alleged gross negligence or willful misconduct; (ii) repeated
failure to perform the Founder's duties to the Corporation as requested in
writing by the Board of Directors (other than as a result of death or a
disability); (iii) Founder's commission of any act of fraud with respect to the
Corporation; or (iv) Founder's conviction of a felony or a crime causing
material harm to the business and affairs of the Corporation. No act or failure
to act by the Founder shall be considered "willful" if done or omitted by the
Founder in good faith with reasonable belief that the Founder's action or
omission was in the best interests of the Corporation.
"Common Stock" means the common stock, par value $0.001 per share, of the
Corporation.
"Good Reason" means the occurrence of any of the following events without
the Founder's prior written consent: (i) a reduction in the Founder's base
salary; (ii) a material adverse change in the Founder's title; (iii) a material
adverse change in the Founder's responsibilities or authority; (iv) a material
reduction in the Founder's employee benefits other than a reduction in employee
benefits
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which applies to all the Corporation employees of comparable position and
experience; or (v) a relocation of the Founder's place of employment outside of
the seven (7) San Francisco Bay Area counties.
"Starting Date" means February 25, 2000.
"Voluntary Termination" means any termination of employment by Founder
other than for Good Reason.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE CORPORATION: DOVEBID, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
Address: DoveBid, Inc.
0000 Xxxx Xxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Assistant Secretary
THE FOUNDER: /s/ Xxxx Xxxx
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XXXX XXXX
Address:
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Facsimile No.:
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HOLDINGS: THE DOVE HOLDINGS CORPORATION
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, President
Address:
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Facsimile No.:
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Attention:
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