EXHIBIT 10.15
XXXxXXXX.XXX, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made effective the 24th day of January, 2000 (the
"Effective Date") between XXXxXXXX.xxx, Inc., a Delaware corporation (the
"Company") and Xxxx Xxxxxxxx (the "Purchaser").
WHEREAS the Purchaser is an employee of the Company and his continued
participation is considered by the Company to be important for the Company's
continued growth; and
WHEREAS in order to give the Purchaser an opportunity to acquire an equity
interest in the Company as an incentive for the Purchaser to participate in the
affairs of the Company, the Company is willing to sell to the Purchaser and the
Purchaser desires to purchase 330,000 shares of Common Stock according to the
terms and conditions hereof.
THEREFORE, the parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the Purchaser and the
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Purchaser hereby agrees to purchase an aggregate of 330,000 shares of the
Company's Common Stock (the "Shares"), at the price of $0.75 per share for an
aggregate purchase price of $247,500 (the "Purchase Price"). The Shares shall
be subject to the terms, definitions and provisions of the Company's 1999 Stock
Plan (the "Plan"), which shall be incorporated herein by reference.
2. Payment of Purchase Price. The Purchase Price for the Shares shall be
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paid by delivery to the Company at the time of execution of this Agreement of
(i) a full recourse promissory note (other with respect to the par value of the
Shares, which shall be paid in cash or cash equivalents) or (ii) cash or check.
3. Issuance of Shares. Upon receipt by the Company of the Purchase Price,
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the Company shall issue a duly executed certificate evidencing the Shares in the
name of the Purchaser to be held in escrow until expiration of the Company's
repurchase option as described in this Agreement.
4. Repurchase Option.
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(A) All of the Shares are subject to the Company's repurchase option
described in this section. In the event of the voluntary or involuntary
termination of the Purchaser's employment with or services to the Company for
any or no reason (including death or disability) before all of the Shares are
released from the Company's repurchase option under Section 5, the Company
shall, upon the date of such termination (as reasonably fixed and determined by
the Company) have an irrevocable, exclusive option for a period of 90 days from
such date to
repurchase all or any portion of the Shares which have not been released from
the purchase option at such time at the original purchase price per share
($0.75) ("Repurchase Option").
(B) The Repurchase Option shall be exercised by the Company by
written notice to the Purchaser or his executor (with a copy to the Escrow
Holder (as defined below)) and, at the Company's option, (i) by delivery to the
Purchaser or his executor with such notice of a check in the amount of the
repurchase price for the Shares being repurchased, or (ii) by cancellation by
the Company of an amount of the Purchaser's indebtedness to the Company equal to
the repurchase price for the Shares being repurchased, or (iii) by a combination
of (i) and (ii) so that the combined payment and cancellation of indebtedness
equals such repurchase price. Upon delivery of such notice and the payment of
the repurchase price in any of the ways described above, the Company shall
become the legal and beneficial owner of the Shares being repurchased and all
rights and interests therein or relating thereto, and the Company shall have the
right to retain and transfer to its own name the number of Shares being
repurchased by the Company.
(C) Whenever the Company shall have the right to repurchase Shares
hereunder, the Company may designate and assign one or more employees, officers,
directors or stockholders of the Company or other persons or organizations to
exercise all or a part of the Company's repurchase rights under this Agreement
and purchase all or a part of such Shares.
5. Release of Shares From Repurchase Option.
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(A) 1/5th of the Shares shall become vested and be released from the
Company's Repurchase Option on the Effective Date, 1/5th of the Shares shall
become vested and be released from the Company's Repurchase Option on the first
anniversary of the Effective Date and 1/60th of the Shares shall become vested
and be released from the Company's Repurchase Option on the last day of each
calendar month beginning on or after the first anniversary of the Effective
Date, in each case provided that the Purchaser's services as an employee of or
consultant to the Company have not been terminated prior to the date of any such
release.
(B) If Purchaser (i) is terminated without Cause (as defined herein),
(ii) suffers a material diminution in compensation or duties or (iii) is
relocated by the Company, without Purchaser's written consent, to a location
more than fifty (50) miles from the Company's Pasadena office, at any time
within six (6) months after a "Change of Control" (as defined herein), then 50%
of the unvested shares that have not been released from the Repurchase Option
shall become vested and be released as of the date of such termination.
(C) If Purchaser is terminated without Cause (as defined below) on or
prior to the six month anniversary of the Effective Date, 3/48th of the unvested
Shares (1/20th of the Shares) shall become vested and be released from the
Company's Repurchase Option as of the date of such termination.
(D) If Purchaser is terminated without Cause (a) following the six
month anniversary of the Effective Date and (b) prior to the twelve month
anniversary of the Effective Date, then 6/48th of the unvested Shares (1/10th of
the Shares) shall become vested and be released from the Company's Repurchase
Option as of the date of such termination.
(E) If Purchaser is terminated without Cause on or after the twelve
month anniversary of the Effective Date then that number of Shares equal to
lesser of (a) the number of then unvested Shares and (b) the product of (i)
1/60th of the Shares and (ii) the number of full months Executive was employed
by the Company shall become vested and be released from the Company's Repurchase
Option as the date of such termination.
A termination "For Cause" means that Purchaser (i) is terminated for
any act of personal dishonesty taken by the Purchaser in connection with
Purchaser's responsibilities to the Company intended to result in personal
enrichment for Purchaser, (ii) is convicted of a felony, (iii) is terminated due
to a willful act that constitutes misconduct and is injurious to the Company,
(iv) is terminated as a result of gross negligence, recklessness, or willful
misconduct or malfeasance in the performance by the Purchaser of his duties, (v)
is terminated as a result of the willful and repeated failure by the Purchaser
to perform his duties and obligations substantially in compliance with his
Employment Agreement (as defined below) or (vi) is terminated as a result of the
breach by the Purchaser of any of the provisions of Section 10 of his employment
agreement with the Company, entered into as of January 24, 2000 (the "Employment
Agreement"), which has resulted in material damage to the business or reputation
of the Company.
A "Change in Control" shall occur upon (i) any acquisition or merger
or similar transaction (e.g., tender offer) of the Company where the
stockholders of the Company immediately prior to such transaction hold 50% or
less of the voting power of the surviving corporation, (ii) any transaction
pursuant to which any person or "group" (as defined in 13d-5 of the Securities
Exchange Act of 1934) acquires 51% or more of the voting power of the Company
but only if such person or group has nominated or designated 50% or more of the
members of the board of directors of the Company, (iii) any sale of all or
substantially all of the assets of the Company or (iv) stockholder approval of
any liquidation of the Company. As used in this definition, voting power means
the power to vote generally in matters considered by the stockholders of the
Company.
6. Restriction on Transfer. Except for the escrow described in Section 7
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or transfer of the Shares to the Company or its assignees contemplated by this
Agreement, none of the Shares nor any beneficial interest therein shall be
transferred, encumbered or otherwise disposed of in any way until the release of
such Shares from the Company's Repurchase Option in accordance with the
provisions of this Agreement.
7. Escrow of Shares.
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(A) The Shares issued under this Agreement shall be held by the
Secretary of the Company as escrow holder ("Escrow Holder"), along with a stock
assignment executed by the Purchaser in blank, until the expiration of the
Company's Repurchase Option with respect to such Shares as set forth above.
(B) The Escrow Holder is hereby directed to permit transfer of the
Shares only in accordance with this Agreement or instructions signed by both
parties. In the event further instructions are desired by the Escrow Holder, he
shall be entitled to rely upon directions executed by a majority of the
authorized number of the Company's Board of Directors. The Escrow Holder shall
have no liability for any act or omission hereunder while acting in good faith
in the exercise of his own judgment.
(C) If the Company or any assignee exercises its Repurchase Option
hereunder, the Escrow Holder, upon receipt of written notice of such option
exercise from the proposed transferee, shall take all steps necessary to
accomplish such transfer.
(D) When the Repurchase Option has been exercised or expires
unexercised or a portion of the Shares has been released from such Repurchase
Option, upon Purchaser's request the Escrow Holder shall promptly cause a new
certificate to be issued for such released Shares and shall deliver such
certificate to the Purchaser.
(E) Subject to the terms hereof, the Purchaser shall have all the
rights of a stockholder with respect to such Shares while they are held in
escrow, including without limitation, the right to vote the Shares and receive
any cash dividends declared thereon. If, from time to time during the term of
the Company's Repurchase Option, there is (i) any stock dividend, stock split or
other change in the Shares, or (ii) any merger or sale of all or substantially
all of the assets or other acquisition of the Company, any and all new,
substituted or additional securities to which the Purchaser is entitled by
reason of his ownership of the Shares shall be immediately subject to this
escrow, deposited with the Escrow Holder and included thereafter as "Shares" for
purposes of this Agreement and the Company's repurchase option.
8. Legends. The share certificate evidencing the Shares issued hereunder
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shall be endorsed with the following legends:
(A) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE
EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
(B) "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY."
(C) Any legend required to be placed thereon by applicable state
securities laws.
9. Investment Representations; Restriction on Transfer.
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(A) In connection with the purchase of the Shares, the Purchaser
represents to the Company the following:
(B) He is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the securities. He is purchasing
these securities for investment for his own account only and not with a view to,
or for resale in connection with, any "distribution" thereof within the meaning
of the Securities Act of 1933 (the "Securities Act").
(C) He understands that the securities have not been registered under
the Securities Act by reason of a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of his investment intent
as expressed herein. In this connection, he understands that, in view of the
Securities and Exchange Commission (the "Commission"), the statutory basis for
such exemption may not be present if his representations meant that his present
intention was to hold these securities for a minimum capital gains period under
the tax statutes, for a deferred sale, for a market rise, for a sale if the
market does not rise, or for a year or any other fixed period in the future.
(D) He further acknowledges and understands that the securities must
be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. He further
acknowledges and understands that the Company is under no obligation to register
the securities. He understands that the certificate evidencing the securities
will be imprinted with a legend which prohibits the transfer of the securities
unless they are registered or such registration is not required in the opinion
of counsel for the Company.
(E) He is aware of the adoption of Rule 144 by the Commission,
promulgated under the Securities Act, which permits limited public resale of
securities acquired in a non-public offering subject to the satisfaction of
certain conditions.
(F) He further acknowledges that in the event all of the requirements
of Rule 144 are not met, compliance with Regulation A or some other registration
exemption will be required; and that although Rule 144 is not exclusive, the
staff of the Commission has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and other than
pursuant to Rule 144 will have a substantial burden of proof in establishing
that an exemption from registration is available for such offers or sales and
that such persons and the brokers who participate in the transactions do so at
their own risk.
(G) The Purchaser agrees, in connection with the Company's initial
public offering of the Company's securities, (i) not to sell, make short sales
of; loan, grant any options for the purchase of; or otherwise dispose of any
shares of Common Stock of the Company held by the Purchaser (other than those
shares included in the registration) without the prior written consent of the
Company or the underwriters managing such initial underwritten public offering
of the Company's securities for up to one hundred eighty (180) days from the
effective date of such registration and (ii) further agrees to execute any
agreement reflecting (i) above as may be requested by the underwriters at the
time of the public offering.
10. Adjustment for Stock Split. All references to the number of Shares and
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the Purchase Price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
11. General Provisions.
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(A) This Agreement shall be governed by the internal laws of the
State of California. This Agreement and the Employment Agreement represent the
entire agreement between the parties with respect to the purchase of Common
Stock by the Purchaser, may only be modified or amended in writing signed by
both parties and satisfies all of the Company's obligations to the Purchaser
with regard to the issuance or sale of securities.
(B) Any notice, demand or request required or permitted to be given
by either the Company or the Purchaser pursuant to the terms of this Agreement
shall be in writing and shall be deemed given when delivered personally or
deposited in the U. S. mail, First Class with postage prepaid, and addressed to
the parties at the addresses of the parties set forth at the end of this
Agreement or such other address as a party may request by noticing the other in
writing. Any notice to the Escrow Holder shall be sent to the Company's address
with a copy to the other party not sending the notice.
(C) The rights and benefits of the Company under this Agreement shall
be transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of; and be enforceable by the
Company's successors and assigns. The rights and obligations of the Purchaser
under this Agreement may only be assigned with the prior written consent of the
Company.
(D) Either party's failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of either party's right
to assert all other legal remedies available to it under the circumstances.
(E) The Purchaser agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
(F) The Purchaser understands that he (and not the Company) shall be
responsible for his own federal, state, local or foreign tax liability and any
of the other tax consequences that may arise as a result of the transactions
contemplated by this Agreement. The Purchaser shall rely solely on the
determinations of his tax advisors or his own determinations, and not on any
statements or representations by the Company or any of its agents, with regard
to all such tax matters. The Purchaser shall notify the Company in writing if
the Purchaser files an election pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended, with the Internal Revenue Service within
thirty (30) days from the date of the sale of the Shares hereunder. The Company
intends, in the event it does not receive from the Purchaser evidence of such
filing, to claim a tax deduction for any amount which would be taxable to the
Purchaser in the absence of such an election.
(G) THE PURCHASER UNDERSTANDS THAT THE SALE OF THE SECURITIES WHICH
ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER
OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES
OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO
SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first set forth above.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT THIS DOCUMENT AND THE
EMPLOYMENT AGREEMENT REPRESENT THE DEFINITIVE AGREEMENT BETWEEN THE PURCHASER
AND THE COMPANY WITH REGARD TO THE ISSUANCE OF COMPANY SECURITIES TO THE
PURCHASER AND THAT THIS AGREEMENT AND THE EMPLOYMENT AGREEMENT SUPERSEDE ANY
OTHER AGREEMENT, EITHER ORAL OR WRITTEN, RELATING TO THE PURCHASER'S RIGHTS TO
COMPANY SECURITIES. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY AND ALL
FUTURE ISSUANCES OF COMPANY SECURITIES TO THE PURCHASER MUST BE APPROVED BY THE
COMPANY'S BOARD OF DIRECTORS AND EVIDENCED BY AN EXECUTED WRITTEN AGREEMENT IN
ORDER TO BECOME BINDING ON THE COMPANY.
XXXxXXXX.xxx, Inc.
a Delaware corporation PURCHASER:
By: /s/ Xxx XxXxxxxx /s/ Xxxx Xxxxxxxx
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Xxx XxXxxxxx, Jr. (Signature)
President
CONSENT OF SPOUSE
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I, Xxxxxx Xxxxxxxx, spouse of Xxxx Xxxxxxxx, have read and approve the foregoing
Agreement. In consideration of granting of the right to my spouse to purchase
shares of XXXxXXXX.xxx, Inc. Common Stock, as set forth in the Agreement, I
hereby appoint my spouse as my attorney-in-fact in respect to the exercise of
any rights under the Agreement and agree to be bound by the provisions of the
Agreement insofar as I may have any rights in said Agreement or any shares
issued pursuant thereto under the community property laws of the State of
California or similar laws relating to marital property in effect in the state
of our residence as of the date of the signing of the foregoing Agreement.
Dated: 1/24/00
/s/ Xxxxxx Xxxxxxxx
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Signature
