EXHIBIT 10.11
EMPLOYEE STOCK PURCHASE AGREEMENT
This Agreement is made as of the 1st day of June, 1999, by and between
UniPhy Healthcare, Inc., a Tennessee corporation (the "Corporation"), and R.
Xxxx Xxxxxxx (the "Purchaser").
1. PURCHASES OF SHARES
1.1 Purchase. The Purchaser has agreed to purchase, and the Corporation
has agreed to sell to the Purchaser, 15,000 shares of the Corporation's Common
Stock (the "Purchased Shares") at a purchase price per share equal to the price
per share paid within 90 days from the date hereof by purchasers in the next
round of equity financing of the Corporation; provided, however, if the purchase
price has not been determined by an equity investment within such 90 day period,
the Corporation shall determine the purchase price per share (the "Purchase
Price"). The Corporation shall notify the Purchaser of the Purchase Price when
it is determined and the Purchaser shall have 10 days after receipt of notice of
the Purchase Price to either purchase the Purchased Shares or advise the
Corporation that he does not desire to purchase the Purchased Shares. The
Purchaser has no obligation to purchase the Purchased Shares when notified of
the Purchase Price and the Corporation has no obligation to sell the Purchased
Shares if the Purchase Price is not determined within 90 days of the date
hereof. If Purchaser elects to purchase the Purchased Shares, then within 10
days after receipt of notice of the Purchase Price the following documents, in
the forms used by the Corporation for sales of the common stock to employees,
shall be executed by the Purchaser:
1. Promissory Note.
2. Pledge Agreement.
3. 83(b) Election
4. Investors' Rights Agreement.
5. Voting Agreement.
6. Rights of First Refusal and Co-Sale Agreement.
7. Employee Proprietary Information and Invention Agreement.
1.2 Legend. The certificates representing the Purchased Shares
purchased hereunder shall be marked with appropriate legends indicating that
such shares are subject to this Agreement and are restricted as provided herein.
1.3 Other Agreements. The Purchaser and the Corporation acknowledge
that they shall be parties to an Investors' Rights Agreement, a Right of First
Refusal and Co-Sale Agreement and a Voting Agreement, all as amended, executed
simultaneously herewith (collectively the "Related Agreements"), and the shares
covered hereby shall also be held pursuant to the applicable terms of the
Related Agreements.
2. SECURITIES LAW COMPLIANCE
2.1 Exemption from Registration. The Purchased Shares have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
are being issued to Purchaser in reliance upon the exemption from such
registration provided by Rule 701 of the Securities and Exchange Commission (the
"Commission") for stock issuances under compensatory benefit arrangements such
as this Agreement. Purchaser hereby acknowledges receipt of a copy of this
Agreement.
2.2 Restricted Securities. Purchaser hereby confirms that Purchaser has
been informed that the Purchased Shares are "restricted securities" under the
1933 Act and may not be resold or transferred unless the Purchased Shares are
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 Purchased Shares for an indefinite period and
that Purchaser is aware that Rule 144 of the Commission issued under the 1933
Act is not presently available to exempt the offer and sale by the Purchaser of
the Purchased Shares from the registration requirements of the 1933 Act.
Purchaser is aware of the adoption of Rule 144 by the Commission, promulgated
under the Securities Act, which permits limited public resales of securities
acquired in a nonpublic offering, subject to the satisfaction of certain
conditions. Purchaser understands that under Rule 144, the conditions currently
include, among other things: the availability of certain current public
information about the issuer, the resale occurring not fewer than two years
after the party has purchased and paid for the securities to be sold, the sale
being through a broker in an unsolicited "broker's transaction" and the amount
of securities being sold during any three-month period not exceeding specified
limitations. Purchaser acknowledges and understands that the Company may not
satisfy the current public information requirement of Rule 144 at the time
Purchaser wishes to sell the Purchased Shares or other conditions under Rule 144
which are required of the Company and Purchaser understands that Purchaser will
thereby be precluded from selling the securities under Rule 144 even if the
two-year holding period of said Rule has been satisfied. Prior to Purchaser's
acquisition of the Purchased Shares, Purchaser represents and warrants that he
acquired sufficient information about the Company to reach an informed
knowledgeable decision to acquire the Purchased Shares. Purchaser has such
knowledge and experience in financial and business matters as to make Purchaser
capable of utilizing said information to evaluate the risks of the prospective
investment and to make an informed investment decision. Purchaser is
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able to bear the economic risk of the entire loss of the Purchaser's investment
in the Purchased Stock.
3. SPECIAL PROVISIONS
3.1 Stockholder Rights. Until such time as the Corporation actually
exercises its repurchase rights under this Agreement, Purchaser (or any
successor in interest) shall have all the rights of a stockholder (including
voting and dividend rights) with respect to the Purchased Shares subject,
however, to any applicable transfer restrictions.
3.2 Section 83(b) Election. Purchaser understands that under Section 83
of the Internal Revenue Code of 1986, as amended (the "Code"), the difference
between the Purchase Price paid for the Purchased Shares and their fair market
value on the date any forfeiture restrictions applicable to such shares lapse
will be reportable as ordinary income at the time. For this purpose, the term
"forfeiture restrictions" includes the right of the corporation to repurchase
the Purchased Shares pursuant to its Repurchase Right under Article 4 of this
Agreement. Purchaser understands that Purchaser may elect to be taxed at the
time the Purchased Shares are acquired to the extent, if any, the fair market
value of the Purchased Shares differs from the Purchase Price rather than when
and as such Purchased Shares cease to be subject to such forfeiture
restrictions, by filing an election under Section 83(b) of the code with the
I.R.S. within thirty (30) days after the date of purchase hereunder. If the fair
market value of the Purchased Shares at the date of purchase equals the Purchase
Price paid (and thus no tax is payable), the election must be made to avoid
adverse tax consequences in the future. The form for making this election is
available from the Company upon request. Purchaser understands that failure to
make this filing within the thirty (30) day period will result in the
recognition of ordinary income by the Purchaser (in the event the fair market
value of the Purchased Shares increases after the date of purchase) as the
forfeiture restrictions lapse. PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S
SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A TIMELY ELECTION UNDER
SECTION 83(b), EVEN IF PURCHASER REQUESTS THE CORPORATION OR ITS REPRESENTATIVES
TO MAKE THIS FILING ON PURCHASER'S BEHALF. PURCHASER IS RELYING SOLELY ON
PURCHASER'S ADVISORS WITH RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE
AN 83(b) ELECTION.
4. REPURCHASE RIGHT
4.1 Grant. The Corporation is hereby granted the right (the "Repurchase
Right"), exercisable at any time during the sixty (60) day period following the
date the Purchaser ceases for any reason to be an employee of the Corporation or
a subsidiary (or such longer period of time mutually agreed to by the parties)
to repurchase at the Purchase Price all or at the discretion of the Corporation
any
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portion of the Purchased Shares in which the Purchaser has not acquired a vested
interest in accordance with the vesting provisions of Section 4.3 (such shares
to be hereinafter called the "Unvested Shares").
4.2 Exercise of the Repurchase Right. The Repurchase Right shall be
exercisable by written notice delivered to the Purchaser prior to the expiration
of the applicable sixty (60) day period specified in Section 4.1. The notice
shall indicate the number of Unvested Shares to be repurchased and the date on
which the repurchase is to be effected, such date to be not more than thirty
(30) days after the date of notice. To the extent one or more certificates
representing Unvested Shares may be held by the Purchaser, then Purchaser shall,
prior to the close of business on the date specified for the repurchase, deliver
to the Secretary of the Corporation the certificates representing the Unvested
Shares to be repurchased, each certificate to be properly endorsed for transfer.
The Corporation shall, concurrently with the receipt of such stock certificates,
pay to Purchaser in cash or cash equivalents (including the cancellation of any
purchase-money indebtedness), an amount equal to the original Purchase Price for
the Unvested Shares that are to be repurchased.
4.3 Termination of the Repurchase Right.
(a) The Repurchase Right shall terminate with respect to any
Unvested Shares for which it is not timely exercised under Section 4.2. In
addition, the Repurchase Right shall terminate, and cease to be exercisable,
with respect to any and all Purchased Shares in which the Purchaser vests in
accordance with the schedule below. Accordingly, provided the Purchaser
continues to be an employee of the Corporation or a subsidiary, the Purchaser
shall acquire a vested interest in, and the Repurchase Right shall lapse with
respect to, the Purchased Shares in accordance with the following provisions:
(i) The Purchaser shall not acquire any vested interest
in, nor shall the Repurchase Right lapse with respect to, any Purchased Shares
during the initial twelve month period measured from May 1, 1999 (the "Vesting
Measurement Date").
(ii) From and after the expiration of the initial
one-year period measured from the Vesting Measurement Date, the Purchaser shall
acquire a vested interest in, and the Repurchase Right shall lapse with respect
to, the Purchased Shares in a series of four equal successive annual
installments of the number of shares equal to twenty-five percent (25%) of the
Purchased Shares on the first, second, third and fourth anniversaries of the
Vesting Measurement Date.
(b) All Purchased Shares as to which the Repurchase Right
lapses shall, however, continue to be subject to any rights of the Corporation
or any other party under the Related Agreements or other agreements between the
Corporation
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and the Purchaser and may continue to be subject to the resale restrictions
under Rule 144 of the 1933 Act.
4.4 Fractional Purchased Shares. No fractional shares shall be
repurchased by the Corporation. Accordingly, should the Repurchase Right extend
to a fractional share (in accordance with the vesting computation provisions of
Section 4.3), then such fractional share shall be added to any fractional share
in which the Purchaser is at such time vested in order to make one whole vested
share no longer subject to the Repurchase Right.
4.5 Additional Purchased Shares or Substituted Securities. In the event
of any stock dividend, stock split, recapitalization or other change affecting
the Corporation's outstanding Common Stock as a class effected without receipt
of consideration, then any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend) which is
by reason of any such transaction distributed with respect to the Purchased
Shares shall be immediately subject to the Repurchase Right, but only to the
extent the Purchased Shares are at the time covered by such right. Appropriate
adjustments to reflect the distribution of such securities or property shall be
made to the number of Purchased Shares hereunder and to the price per share to
be paid upon the exercise of the Repurchase Right in order to reflect the effect
of any such transaction upon the Corporation's capital structure; provided,
however, that the aggregate Purchase Price for the shares subject to the
Repurchase Right shall remain the same.
4.6 Corporate Transaction. In the event of any of the following
transactions (a "Corporate Transaction"): the sale, transfer or other
disposition of all or substantially all of the assets of the Corporation, or any
merger or consolidation of the Corporation with or into any other corporation or
corporations in which the holders of shares of the Corporation's outstanding
capital stock prior to such merger or consolidation own less than fifty percent
(50%) of the outstanding capital stock of the surviving corporation following
such merger or consolidation, then the Repurchase Right shall automatically
lapse in its entirety, and the Purchaser shall acquire a vested interest in all
the Purchased Shares upon the consummation of such Corporate Transaction.
4.7 Transfer Restrictions on Unvested Shares. The Purchaser shall not
transfer by sale, assignment, hypothecation, donation or otherwise any of the
Stock or any interest therein subject to the Repurchase Right without the prior
express written consent of the Corporation. The Corporation shall not be
required (i) to transfer on its books any Purchased Shares which shall have been
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.
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5. GENERAL PROVISIONS
5.1 Assignment. The Corporation may assign its Repurchase Rights under
Article 4 to the Shareholders of the Corporation on a pro-rata basis.
5.2 Definitions. For purposes of this Agreement, the following
provisions shall be applicable in determining the parent and subsidiary
corporations of the Corporation:
(a) Any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation shall be considered
to be a parent corporation of the Corporation, provided each such corporation in
the unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
(b) Each corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation shall be
considered to be a subsidiary of the Corporation, provided each such corporation
(other than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
5.3 No Employment or Service Contract. Nothing in this Agreement shall
confer upon the Purchaser any right to continue in the service of the
Corporation (or any parent or subsidiary corporation of the Corporation
employing or retaining Purchaser) for any period of time or interfere with or
restrict in any way the rights of the Corporation (or any parent or subsidiary
corporation of the Corporation employing or retaining Purchaser) or the
Purchaser, which rights are hereby expressly reserved by each, to terminate the
employment status of Purchaser at any time for any reason whatsoever, with or
without cause.
5.4 Notices. Any notice required in connection with (i) the Repurchase
Right or (ii) the disposition of any Purchased Shares covered thereby shall be
given in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States mail, registered or certified, postage prepaid and
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days' advance written notice under this Section
5.4 to all other parties to this Agreement.
5.5 No Waiver. The failure of the Corporation (or its assignees) in any
instance to exercise the Repurchase Rights granted under Article 4 shall not
constitute a waiver of any other repurchase rights that may subsequently arise
under the provisions of this Agreement or any other agreement between the
Corporation and the Purchaser. No waiver of any breach or condition of this
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Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
5.6 Cancellation of Shares. If the Corporation (or its assignees) shall
make available, at the time and place and in the amount and form provided in
this Agreement, the consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and after such time,
the person from whom such shares are to be repurchased shall no longer have any
rights as a holder of such shares (other than the right to receive payment of
such consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Corporation (or its assignees) shall be deemed the owner and holder of such
shares, whether or not the certificates therefor have been delivered as required
by this Agreement.
6. MISCELLANEOUS PROVISIONS
6.1 Purchaser Undertaking. Purchaser hereby agrees to take whatever
additional action and execute whatever additional documents the Corporation may
in its judgment deem necessary or advisable in order to carry out or effect one
or more of the obligations or restrictions imposed on either the Purchaser or
the Purchased Shares pursuant to the express provisions of this Agreement.
6.2 Agreement Is Entire Contract. This Agreement and the Related
Agreements constitutes the entire contract between the parties hereto with
regard to the subject matter hereof.
6.3 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Tennessee, as such laws are applied
to contracts entered into and performed in such State.
6.4 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
6.5 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the Corporation and its successors
and assigns and the Purchaser and the Purchaser's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person shall have become a party to this Agreement and have agreed
in writing to join herein and be bound by the terms and conditions hereof.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first indicated above.
UNIPHY HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President
0000 Xxxx Xxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
PURCHASER
/s/ R. Xxxx Xxxxxxx
-----------------------------------
R. Xxxx Xxxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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