CONCENTRIC ENERGY CORP. RESTRICTED STOCK PURCHASE AGREEMENT
This
Restricted Stock Purchase Agreement (the “Agreement”)
is
made as of this 4th day of January 2008 (the “Date
of Grant”),
by
and among Concentric Energy Corp., a Nevada corporation (the “Company”)
and
Xxx Xxxxx ("Shareholder").
WHEREAS,
concurrently herewith, the Company and Shareholder are entering into a Severance
and Consulting Agreement (the “Severance Agreement”);
WHEREAS,
in
connection with the execution of the Severance Agreement, the Company has agreed
to sell Shareholder 60,000 shares of common stock, par value $0.001 per share
(the “Common
Stock”),
of
the Company to Shareholder and Shareholder desires to purchase the same from
the
Company, on the terms and subject to the conditions set forth in this
Agreement.
ARTICLE
I
SALE
OF RESTRICTED SHARES
1.1 Exercise.
Shareholder
hereby purchases 60,000 shares (“Restricted
Shares”)
of the
Company’s Stock (“Stock”)
at an
Purchase Price of $0.001 per share (“Purchase
Price”).
1.2 Payment.
Concurrently with the delivery of this Agreement to the Corporate Secretary
of
the Company, Shareholder shall pay the Purchase Price for the Restricted Shares,
together with a duly-executed blank Assignment Separate from Certificate (in
the
form attached hereto as Exhibit A)
with
respect to the Restricted Shares. Shareholder’s payment of the Purchase Price
shall be in the form of a bonus of $60.00 paid by the Company to Shareholder.
1.3 Delivery
of Certificates.
The
certificates representing the Restricted Shares hereunder shall be held in
escrow by the Corporate Secretary of the Company in accordance with the
provisions of Article VI.
1.4 Stockholder
Rights.
Until
such time as the Company actually exercises its Repurchase Right under this
Agreement, Shareholder (or any successor in interest) shall have all the rights
of a stockholder (including voting and dividend rights) with respect to the
Restricted Shares, including the Restricted Shares held in escrow under
Article VI,
subject, however, to the transfer restrictions of Article IV.
ARTICLE
II
SECURITIES
LAW COMPLIANCE
2.1 Exemption
from Registration.
The
Restricted Shares have not been registered under the Securities Act of 1933,
as
amended (the “1933
Act”),
and
are issued to Shareholder pursuant to regulatory and statutory exemptions from
the 1933 Act, including without limitation Regulation D.
2.2 Restricted
Securities.
Shareholder
hereby confirms that Shareholder has been informed that the Restricted Shares
are restricted securities under the 1933 Act and may not be resold or
transferred unless the Restricted Shares are first registered under the federal
securities laws or unless an exemption from such registration is available.
Accordingly, Shareholder hereby acknowledges that Shareholder is prepared to
hold the Restricted Shares for an indefinite period and that Shareholder is
aware that Rule 144 of the Securities and Exchange Commission issued under
the
1933 Act is not presently available to exempt the sale of the Restricted Shares
from the registration requirements of the 1933 Act.
2.3 Disposition
of Shares.
Shareholder hereby agrees that Shareholder shall make no disposition of the
Restricted Shares (other than a permitted transfer under Section 4.1)
unless
and until there is compliance with all of the following
requirements:
(a) Shareholder
shall have notified the Company of the proposed disposition and provided a
written summary of the terms and conditions of the proposed
disposition.
(b) Shareholder
shall have complied with all requirements of this Agreement applicable to the
disposition of the Restricted Shares.
(c) Shareholder
shall have provided the Company with written assurances, in form and substance
satisfactory to the Company, that (i) the proposed disposition does not require
registration of the Restricted Shares under the 1933 Act or (ii) all appropriate
action necessary for compliance with the registration requirements of the 1933
Act or of any exemption from registration available under the 1933 Act
(including Rule 144) has been taken.
The
Company shall not
be
required (i) to transfer on its books any Restricted Shares which have been
sold
or transferred in violation of the provisions of this Article II nor
(ii) to
treat as the owner of the Restricted Shares, or otherwise to accord voting
or
dividend rights to, any transferee to whom the Restricted Shares have been
transferred in contravention of this Agreement.
2.4 Restrictive
Legends.
In order
to reflect the restrictions on disposition of the Restricted Shares, the stock
certificates for the Restricted Shares will be endorsed with restrictive
legends, including one or more of the following legends:
(a) “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THE SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER SUCH
ACT, OR (B) SATISFACTORY ASSURANCES TO THE COMPANY THAT REGISTRATION UNDER
SUCH
ACT IS NOT REQUIRED WITH RESPECT TO SUCH SALE OR OFFER.”
(b) “THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE ISSUED PURSUANT TO A RESTRICTED
STOCK
AGREEMENT DATED AS OF THE DATE OF GRANT BETWEEN THE COMPANY AND THE REGISTERED
HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST TO THE SHARES). SUCH
AGREEMENT SUBJECTS THESE SECURITIES TO A SUBSTANTIAL RISK OF FORFEITURE AND
TO
RESTRICTIONS ON TRANSFER. THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY
OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE.”
2
ARTICLE
III
SPECIAL
TAX ELECTION
3.1 Section
83(b) Election. Shareholder
understands that under section 83 of the Internal Revenue Code of 1986, as
amended (the “Code”),
the
excess of the fair market value of the Restricted Shares on the date any
forfeiture restrictions applicable to such shares lapse over the Purchase Price
paid for such shares will be reportable as ordinary income on such lapse date.
For this purpose, the term “forfeiture
restrictions”
includes the right of the Company to repurchase the Restricted Shares pursuant
to the Repurchase Right provided under Article
V
of this
Agreement. Shareholder understands that he/she may elect under section 83(b)
of
the Code to be taxed at the time the Restricted Shares are acquired hereunder,
rather than when and as such Restricted Shares cease to be subject to such
forfeiture restrictions. Such election must be filed with the Internal Revenue
Service within thirty (30) days after the Date of Grant. Even if the fair market
value of the Restricted Shares at the Date of Grant 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 ATTACHED
AS
EXHIBIT B HERETO. SHAREHOLDER UNDERSTANDS THAT FAILURE TO MAKE THIS FILING
WITHIN THE THIRTY (30)-DAY PERIOD WILL RESULT IN THE RECOGNITION OF ORDINARY
INCOME BY THE SHAREHOLDER AS THE FORFEITURE RESTRICTIONS LAPSE.
SHAREHOLDER
ACKNOWLEDGES THAT IT IS SHAREHOLDER’S SOLE RESPONSIBILITY, AND NOT THE
COMPANY’S, TO FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF SHAREHOLDER
REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON HIS/HER
BEHALF. This filing should be made by registered or certified mail, return
receipt requested, and Shareholder must retain two (2) copies of the completed
form for filing with his or her state and federal tax returns for the current
tax year and an additional copy for his or her records.
3.2 Tax
Consequences.
It is
the intent of the parties that, subject to the election of Shareholder pursuant
to Section
3.1
hereof,
the issuances of the Restricted Shares shall not be a taxable transaction,
and
that the Shareholder shall be responsible for the payment of taxes associated
with the lapse of forfeiture restrictions on the Restricted Shares as such
lapses occur.
ARTICLE
IV
TRANSFER
RESTRICTIONS
4.1 Restriction
on Transfer. Shareholder
shall not transfer, assign, encumber or otherwise dispose of any of the
Restricted Shares which are subject to the Company’s Repurchase Right under
Article
V.
Such
restriction on transfer, however, shall not
be
applicable to (i) a gratuitous transfer of the Restricted Shares provided
and only if
the
Shareholder obtains the Company’s prior written consent to such transfer, (ii) a
transfer of title to the Restricted Shares effected pursuant to the
Shareholder’s will or the laws of intestate succession or (iii) a transfer to
the Company in pledge as security for any purchase-money indebtedness incurred
by the Shareholder in connection with the acquisition of the Restricted
Shares.
3
4.2 Transferee
Obligations.
Each
person (other than the Company) to whom the Restricted Shares are transferred
by
means of one of the permitted transfers specified in Section 4.1
must, as
a condition precedent to the validity of such transfer, acknowledge in writing
to the Company that such person is bound by the provisions of this Agreement
and
that the transferred shares are subject to (i) the Company’s Repurchase Right
granted hereunder and (ii) the market stand-off provisions of Section 4.4,
to the
same extent such shares would be so subject if retained by the
Shareholder.
4.3 Definition
of Owner.
For
purposes of Articles
IV,
V,
and
VI
of this
Agreement, the term “Owner”
shall
include the Shareholder and all subsequent holders of the Restricted Shares
who
derive their chain of ownership through a permitted transfer from the
Shareholder in accordance with Section 4.1.
4.4 Market
Stand-Off Provisions.
(a) In
connection with any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the
1933
Act, including the Company’s initial public offering, Owner shall not sell, make
any short sale of, loan, hypothecate, pledge, grant any option for the purchase
of, or otherwise dispose or transfer for value or otherwise agree to engage
in
any of the foregoing transactions with respect to, any Restricted Shares without
the prior written consent of the Company or its underwriters. Such limitations
shall be in effect for such period of time from and after the effective date
of
such registration statement as may be requested by the Company or such
underwriters; provided, however, that in no event shall such period exceed
the
period required from similarly situated stockholders of the Company. The
provisions of this Section 4.4
shall
remain in effect for the two-year period immediately following the effective
date of the Company’s initial public offering and shall thereafter terminate and
cease to have any force or effect.
(b) Owner
shall be subject to the market stand-off provisions of this Section 4.4
provided
and only if the officers and directors of the Company are also subject to
similar arrangements.
(c) In
the
event of any stock dividend, stock split, recapitalization or other change
affecting the Company’s outstanding Stock effected as a class without receipt of
consideration, then any new, substituted or additional securities distributed
with respect to the Restricted Shares shall be immediately subject to the
provisions of this Section 4.4,
to the
same extent the Restricted Shares are at such time covered by such
provisions.
(d) In
order
to enforce the limitations of this Section 4.4,
the
Company may impose stop-transfer instructions with respect to the Restricted
Shares until the end of the applicable stand-off period.
4
ARTICLE
V
REPURCHASE
RIGHT; RIGHT OF FIRST REFUSAL; IRREVOCABLE PROXY
5.1 Grant.
The
Company is hereby granted the right (the “Repurchase
Right”)
exercisable for 90 days from and after December 27, 2010 (or such longer period
as may be agreed by the Company and the Shareholder) to repurchase at the
Purchase Price all or any portion of the Restricted Shares in which the
Shareholder has not acquired a vested interest in accordance with the vesting
provisions of Section 5.3
(such
shares to be hereinafter called the “Unvested
Shares”).
In
addition, the Repurchase Right shall be exercisable if, prior to the time of
the
Company’s initial public offering or three years from the date of the Severance
Agreement, whichever comes first, Shareholder shall have breached the Severance
Agreement.
5.2 Exercise
of the Repurchase Right. The
Repurchase Right shall be exercisable by written notice delivered to the Owner
of the Unvested Shares prior to the expiration of the applicable ninety (90)-day
period specified in Section 5.1.
The
notice shall indicate the number of Unvested Shares to be repurchased and the
date on which the repurchase is to be effected. To the extent one or more
certificates representing Unvested Shares may have been previously delivered
out
of escrow to the Owner, then Owner shall, prior to the close of business on
the
date specified for the repurchase, deliver to the Secretary of the Company
the
certificates representing the Unvested Shares to be repurchased, each
certificate to be properly endorsed for transfer. The Company shall,
concurrently with the receipt of such stock certificates (either from escrow
in
accordance with Section 6.3
or from
Owner as herein provided), pay to Owner in cash or cash equivalents (including
the cancellation of any purchase-money indebtedness), an amount equal to the
Purchase Price previously paid to the Company for the Unvested Shares which
are
to be repurchased.
5.3 Termination
of the Repurchase Right.
(a) The
Repurchase Right provided for in Section 5.1
shall
terminate with respect to any Unvested Shares for which it is not timely
exercised under Section 5.2.
In
addition, the Repurchase Right shall terminate, and cease to be exercisable,
with respect to the Restricted Shares upon the Company (or a successor in
interest) conducting an initial public offering of its shares; provided,
however,
that if
on any date on which the Restricted Shares would otherwise vest, Owner would
be
in violation of (i) the provisions of Section
4.4
hereof
or any similar lock-up agreement; (ii) Company policy as to sale of
securities by directors or (iii) Rule 10b-5 promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)
(or
any similar or successor law or regulation applicable to the Company or its
successor) were Owner to sell any of the Restricted Shares, then in each such
case, the foregoing vesting date shall be delayed until the first date on which
Owner would no longer be in violation of the applicable provision or provisions.
It is acknowledged that no such delay would be required to the extent an
effective Rule 10b5-1 trading plan or other effective legal device is in effect
on a vesting date and has the effect of vitiating the potential violation
referred to in clause (iii) above. All Restricted Shares as to which the
Repurchase Right lapses shall, however, continue to be subject to (i) the market
stand-off provisions of Section 4.4.
Notwithstanding the above, in no event will the Restricted Shares be deemed
to
be vested if at the time the Repurchase Right lapses, the Restricted Shares
are
not then traded on National Securities Exchange (as defined in the Exchange
Act)
or the Toronto Stock Exchange; provided,
however,
that
the restriction in this sentence shall cease to apply upon the first Anniversary
on which the relevant Repurchase Right would have lapsed (or such earlier time
as the Restricted Shares shall have been so listed), subject in each case to
the
provisions of clauses (i) through (iii) of this Section 5.3(a).
5
(b) The
Repurchase Right shall also terminate immediately prior to the consummation
of a
Change in Control. “Change
in Control”
shall
mean a change in control of the Company of a nature that would be required
to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item or any similar schedule or form) promulgated under
the Exchange Act, whether or not the Company is then subject to such reporting
requirement; provided,
however,
that,
without limitation, such a Change in Control shall be deemed to have occurred
if
(i) any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) not presently in possession of such beneficial
ownership is or becomes the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing twenty (20%) or more of the combined voting power of the Company’s
then outstanding securities without the prior approval of at least two-thirds
of
the members of the Board in office immediately prior to such person attaining
such percentage interest; (ii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest,
as a
consequence of which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board thereafter;
or
(iii) during any period of two (2) consecutive years, individuals who at
the beginning of such period constituted the Board (including for this purpose
any new director whose election or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the directors
then
still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board.
5.4 Additional
Shares or Substituted Securities.
In the
event of any stock dividend, stock split, recapitalization or other change
affecting the Company’s outstanding 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 Restricted
Shares shall be immediately subject to the Repurchase Right, but only to the
extent and in proportion to the Restricted 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 Restricted 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
Company’s capital structure; provided,
however, that the aggregate purchase price shall remain the same.
5.5 Right
of First Refusal.
(a)
In
the event Shareholder desires to accept a bona fide third-party offer for the
transfer of any or all of the Restricted Shares (the shares subject to such
offer to be hereafter called the ‘‘Target Shares”), the Shareholder shall
promptly deliver to the Company written notice of the intended disposition
(“Disposition Notice”) and the basic terms and conditions thereof, including the
identity of the proposed purchaser.
(b)
The
Company shall, for a period of fifteen (15) days following receipt of the
Disposition Notice (the "Refusal Period"), have the right to repurchase all
or
any portion of the Target Shares upon the same terms and conditions specified
in
the Disposition Notice, subject to the conditions set forth herein. Such right
shall be exercisable by written notice (the “First Refusal Notice”) delivered to
the Shareholder and the Investors prior to the expiration of the Refusal Period.
If such right is exercised with respect to all the Target Shares specified
in
the Disposition Notice, then the Company shall effect the purchase of such
Target Shares, including payment of the purchase price, not more than five
(5)
business days after the receipt of the First Refusal Notice by the Shareholder.
At such time, the Shareholder shall deliver to the Company the certificates
representing the Target Shares to be purchased, each certificate to be properly
endorsed for transfer.
6
Should
the purchase price specified in the Disposition Notice be payable in property
other than cash or evidences of indebtedness, the Company shall have the right
to pay the purchase price in the form of cash equal in amount to the value
of
such property. If the Shareholder and the Company cannot agree on such cash
value within ten (10) days after the Company’s receipt of the Disposition
Notice, the valuation shall be made by an appraiser of recognized standing
selected by the Shareholder and the Company or, if they cannot agree on an
appraiser within twenty (20) days after the Company’s receipt of the Disposition
Notice, each shall select an appraiser of recognized standing and the two
appraisers shall designate a third appraiser of recognized standing, whose
appraisal shall be determinative of such value. The cost of such appraisal
shall
be shared equally by the Shareholder and the Company. Thereafter, the closing
shall then be held on the later of (i) the fifth business day following the
delivery of the First Refusal Notice, or (ii) the fifth business day after
such
valuation shall have been made, with all other periods hereunder being tolled
pending the delivery of such valuation.
(c) In
the
event the First Refusal Notice is not given by the Company to the Shareholder
within the Refusal Period the Company shall be deemed to have waived its right
of first refusal with respect to such proposed disposition.
(d) The
right
of first refusal granted pursuant to this Section 5.5 shall expire upon the
earlier of (i) the effectiveness of the Company’s initial public offering, or
(ii) January 4, 2011.
5.6
Irrevocable Proxy.
Shareholder grants an irrevocable proxy to the Board of Directors of the Company
to vote the Restricted Shares on his behalf. The proxy granted hereby shall
terminate upon the earlier of (i) the effectiveness of the Company’s initial
public offering, or (ii) January 4, 2011.
ARTICLE
VI
ESCROW
6.1 Deposit.
Upon
issuance, the certificates for any Unvested Shares purchased hereunder shall
be
deposited in escrow with the Corporate Secretary of the Company to be held
in
accordance with the provisions of this Article
VI.
Each
deposited certificate shall be accompanied by a duly-executed Assignment
Separate from Certificate in the form of Exhibit A. The deposited certificates,
together with any other assets or securities from time to time deposited with
the Corporate Secretary pursuant to the requirements of this Agreement, shall
remain in escrow until such time or times as the certificates (or other assets
and securities) are to be released or otherwise surrendered for cancellation
in
accordance with Section 6.3.
Upon
delivery of the certificates (or other assets and securities) to the Corporate
Secretary of the Company, the Owner shall be issued an instrument of deposit
acknowledging the number of Unvested Shares (or other assets and securities)
delivered in escrow.
7
6.2 Recapitalization.
All
regular cash dividends on the Unvested Shares (or other securities at the time
held in escrow) shall be paid directly to the Owner and shall not be held in
escrow. However, in the event of any stock dividend, stock split,
recapitalization or other change affecting the Company’s outstanding Stock as a
class effected without receipt of consideration or in the event of a Corporate
Transaction, any new, substituted or additional securities or other property
which is by reason of such transaction distributed with respect to the Unvested
Shares shall be immediately delivered to the Corporate Secretary to be held
in
escrow under this Article
VI,
but
only to the extent and in proportion to the Unvested Shares are at the time
subject to the escrow requirements of Section 6.1.
6.3 Release/Surrender.
The
Unvested Shares, together with any other assets or securities held in escrow
hereunder, shall be subject to the following terms and conditions relating
to
their release from escrow or their surrender to the Company for repurchase
and
cancellation:
(a) Should
the Company (or its assignees) elect to exercise the Repurchase Right under
Article
V
with
respect to any Unvested Shares, then the escrowed certificates for such Unvested
Shares (together with any other assets or securities issued with respect
thereto) shall be delivered to the Company concurrently with the payment to
the
Owner, in cash or cash equivalent (including the cancellation of any
purchase-money indebtedness), of an amount equal to the aggregate Purchase
Price
for such Unvested Shares, and the Owner shall cease to have any further rights
or claims with respect to such Unvested Shares (or other assets or securities
attributable to such Unvested Shares).
(b) As
the
interest of the Shareholder in the Unvested Shares (or any other assets or
securities attributable thereto) vests in accordance with the provisions of
Article
V,
the
certificates for such vested shares (as well as all other vested assets and
securities) may be released from escrow and delivered to the Owner in accordance
with the following schedule:
i. The
initial release of vested shares (or other vested assets and securities) from
escrow shall be effected within thirty (30) days following the expiration of
the
initial vesting period hereunder.
ii. Subsequent
releases of vested shares (or other vested assets and securities) from escrow
shall be effected at annual intervals thereafter following the expiration of
each vesting period.
iii. Upon
the
Shareholder’s cessation of service with the Company, any escrowed Restricted
Shares (or other assets or securities) in which the Shareholder is at the time
vested shall be promptly released from escrow.
iv. Upon
any
earlier termination of the Company’s Repurchase Right in accordance with the
applicable provisions of Article
V,
any
Restricted Shares (or other assets or securities) at the time held in escrow
hereunder shall promptly be released to the Owner as fully-vested shares or
other property.
8
(c) All
Restricted Shares (or other assets or securities) released from escrow in
accordance with the provisions of subsection (ii) above shall nevertheless
remain subject to (I) the market stand-off provisions of Section 4.4
until
such provisions terminate in accordance therewith.
ARTICLE
VII
GENERAL
PROVISIONS
7.1 Assignment.
The
Company may assign its Repurchase Right under Article V
to any
person or entity selected by the Company’s Board of Directors, including
(without limitation) one or more stockholders of the Company.
If
the
assignee of the Repurchase Right is other than a one hundred percent (100%)
owned subsidiary Company of the Company or the parent Company owning one hundred
percent (100%) of the Company, then such assignee must make a cash payment
to
the Company, upon the assignment of the Repurchase Right, in an amount equal
to
the excess (if any) of (i) the fair market value of the Unvested Shares at
the
time subject to the assigned Repurchase Right over (ii) the aggregate repurchase
price payable for the Unvested Shares thereunder.
7.2 Definitions.
For
purposes of this Agreement, the following provisions shall be applicable in
determining the parent and subsidiary Companies of the Company:
(a) Any
Company (other than the Company) in an unbroken chain of Companies ending with
the Company shall be considered to be a parent Company of the Company, provided
each such Company in the unbroken chain (other than the Company) 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
Companies in such chain.
(b) Each
Company (other than the Company) in an unbroken chain of Companies beginning
with the Company shall be considered to be a subsidiary of the Company, provided
each such Company (other than the last Company) 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
Companies in such chain.
7.3 No
Employment or Service Contract.
Nothing
in this Agreement shall confer upon the Shareholder any right to continue to
be
retained by the Company in any capacity (or any parent or subsidiary Company
of
the Company retaining Shareholder) for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company (or
any parent or subsidiary Company of the Company employing or retaining
Shareholder) or the Shareholder, which rights are hereby expressly reserved
by
each, to terminate the Shareholder’s relationship to the Company at any time for
any reason whatsoever, with or without cause.
7.4 Notices.
Any
notice required in connection with (i) the Repurchase Right or
(ii) the disposition of any Restricted Shares covered thereby shall be
given in writing and shall be deemed effective (i) 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 7.4
to all
other parties to this Agreement or (ii) if communicated via electronic
mail, to the electronic email address of the Company's general counsel (or
chief
financial officer if the Company has no general counsel) and, in the case of
Shareholder, to the email address provided by Shareholder to the Company for
business communications.
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7.5 No
Waiver.
The
failure of the Company (or its assignees) in any instance to exercise the
Repurchase Right granted under Article V
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
Company and the Shareholder or the Shareholder’s spouse. No waiver of any breach
or condition of this Agreement shall be deemed to be a waiver of any other
or
subsequent breach or condition, whether of like or different
nature.
7.6 Cancellation
of Shares.
If the
Company (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
Restricted 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 Company (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.
ARTICLE
VIII.
MISCELLANEOUS
PROVISIONS
8.1 Shareholder
Undertaking. Shareholder
hereby agrees to take whatever additional action and execute whatever additional
documents the Company 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 Shareholder or the Restricted Shares pursuant to the express
provisions of this Agreement.
8.2 Agreement
is Entire Contract.
This
Agreement constitutes the entire contract between the parties hereto with regard
to the subject matter hereof.
8.3 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Nevada, as such laws are applied to contracts entered into and
performed in such state without resort to that state’s conflict-of-laws
rules.
8.4 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.
8.5 Successors
and Assigns.
The
provisions of this Agreement shall inure to the benefit of, and be binding
upon,
the Company and its successors and assigns and the Shareholder and the
Shareholder’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.
10
8.6 Power
of Attorney.
Shareholder’s spouse hereby appoints Shareholder his or her true and lawful
attorney in fact, for him or her and in his or her name, place and xxxxx, and
for his or her use and benefit, to agree to any amendment or modification of
this Agreement and to execute such further instruments and take such further
actions as may reasonably be necessary to carry out the intent of this
Agreement. Shareholder’s spouse further gives and grants unto Shareholder as his
or her attorney in fact full power and authority to do and perform every act
necessary and proper to be done in the exercise of any of the foregoing powers
as fully as he or she might or could do if personally present, with full power
of substitution and revocation, hereby ratifying and confirming all that
Shareholder shall lawfully do and cause to be done by virtue of this power
of
attorney.
[Signature
Page Follows]
11
IN
WITNESS WHEREOF, the parties have executed this Restricted Stock Purchase
Agreement on the day and year first indicated above.
|
By:
|
/s/
Xxxx X. Xxxxx
|
|
Name:
|
Xxxx
X. Xxxxx
|
|
Title:
|
President
|
|
Address:
|
0000
Xxxxx Xxxxx, Xxxxx 0
|
|
Xxxxxxxxxx,
XX 00000
|
|
|
SHAREHOLDER
|
|
|
Xxxxxx
Xxxxx
|
|
|
By:
|
/s/
Xxxxxx Xxxxx
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Name:
|
Xxxxxx
Xxxxx
|
|
Address:
|
0000
X. Xxxx Xxx
|
|
|
Xxxxxxxx,
XX 00000
|
SIGNATURE
PAGE TO RESTRICTED STOCK PURCHASE AGREEMENT
Consent
of Spouse
The
undersigned spouse of Shareholder has read and hereby approves the foregoing
Restricted Stock Purchase Agreement. In consideration of the Company’s granting
the Shareholder the right to acquire the Restricted Shares in accordance with
the terms of such Agreement, the undersigned hereby agrees to be irrevocably
bound by all the terms and provisions of such Agreement, including
(specifically) the right of the Company (or its assignees) to purchase any
and
all interest or right the undersigned may otherwise have in such shares pursuant
to community property laws or other marital property rights.
|
Signature:
|
/s/
Xxxxxx Xxx Xxxxx
|
|
Shareholder’s
Spouse
|
|
|
Name:
|
Xxxxxx
Xxx Xxxxx
|
|
Address:
|
0000
X. Xxxx Xxx
|
|
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Xxxxxxxx,
XX 00000
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EXHIBIT
A
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE
RECEIVED, _____________________ hereby sells, assigns and transfers unto
Concentric Energy Corp. (the “Company”)
___________________________ shares of the Stock of the Company standing in
his\her name on the books of the Company represented by Certificate(s) No(s).
___________ delivered herewith and does hereby irrevocably constitute and
appoint _________________________ Attorney to transfer the said stock on the
books of the Company with full power of substitution in the
premises.
|
Date:
______________________
|
Signature:
|
|
Instruction:
Please
do not fill in any blanks other than the signature line. The purpose of this
assignment is to enable the Company to exercise its Repurchase Right set forth
in the Agreement without requiring additional signatures on the part of the
Shareholder.
EXHIBIT B
SECTION
83(b) TAX ELECTION
This
statement is being made under section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
| (1) |
The
taxpayer who performed the services
is:
|
Name: _____________________________________________
Address:
_____________________________________________
Taxpayer
ID Number: _____________________________________________
|
(2)
|
The
property with respect to which the election is being made is _____________
shares of the Stock of Concentric Energy
Corp.
|
|
(3)
|
The
property was issued on ___________________
20____.
|
|
(4)
|
The
taxable year in which the election is being made is the calendar
year
20____.
|
|
(5)
|
The
property is subject to a repurchase right pursuant to which the issuer
has
the right to acquire the property at the original purchase price
if
taxpayer’s retention by the issuer is terminated. The issuer’s repurchase
right lapses in a series of annual installments over a three (3)-year
period ending on
________________________.
|
|
(6)
|
The
fair market value at the time of transfer (determined without regard
to
any restriction other than a restriction which by its terms will
never
lapse) is $________ per share.
|
|
(7)
|
The
amount paid for such property is $0.001 per
share.
|
|
(8)
|
A
copy of this statement was furnished to Concentric Energy Corp.,
for whom
taxpayer rendered the services underlying the transfer of
property.
|
|
(9)
|
This
statement is executed as of:
_______________________.
|
|
(Signature
of Taxpayer)
|
Filing
Instructions: This
form
must be filed with the Internal Revenue Service Center with which taxpayer
files
his/her federal income tax returns. The filing must be made within 30 days
after
the execution date of the Restricted Stock Purchase Agreement.
Note:
This
page 2 should be attached only
if you
are exercising an Incentive Stock Option.
SPECIAL
PROTECTIVE ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE
WITH
RESPECT TO PROPERTY ACQUIRED UPON EXERCISE OF AN INCENTIVE STOCK
OPTION
The
property described in the above section 83(b) election is comprised of shares
of
Stock acquired pursuant to the exercise of an Incentive Stock Option under
section 422 of the Code. Accordingly, it is the intent of the taxpayer to
utilize this election to achieve the following tax results:
1. The
purpose of this election is to have the alternative minimum taxable income
attributable to the Restricted Shares measured by the amount by which the fair
market value of such shares at the time of their transfer to the taxpayer
exceeds the purchase price paid for the shares. In the absence of this election,
such alternative minimum taxable income would be measured by the spread between
the fair market value of the Restricted Shares and the purchase price which
exists on the various lapse dates in effect for the forfeiture restrictions
applicable to such shares. The election is to be effective to the full extent
permitted under the Internal Revenue Code.
2. Section
421(a)(1) of the Code expressly excludes from income any excess of the fair
market value of the Restricted Shares over the amount paid for such shares.
Accordingly, this election is also intended to be effective in the event there
is a “disqualifying disposition” of the shares, within the meaning of section
421(b) of the Code, which would otherwise render the provisions of section
83(a)
of the code applicable at that time. Consequently, the taxpayer hereby elects
to
have the amount of disqualifying disposition income measured by the excess
of
the fair market value of the Restricted Shares on the date of transfer to the
taxpayer over the amount paid for such shares. Since section 421(a) presently
applies to the shares which are the subject of this section 83(b) election,
no
taxable income is actually recognized for regular tax purposes at this time,
and
no income taxes are payable, by the taxpayer as a result of this
election.
Filing
Instructions:
This
form should be filed with the Internal Revenue Service Center with which
taxpayer files his/her federal income tax returns. The filing must be made
within 30 days after the execution date of the Restricted Stock Purchase
Agreement.
