Exhibit 10.11
NETGRAVITY, INC.
COMMON STOCK REPURCHASE AGREEMENT AND
CLARIFICATION OF FOUNDER'S STOCK PURCHASE AGREEMENT
MARCH 12, 1997
This Agreement (the "AGREEMENT") is made as of the date first written above
by and between NetGravity, Inc., a Delaware corporation (the "COMPANY"), and
Xxxxxx X. Xxxxxxx ("FOUNDER") (together, the "PARTIES").
RECITALS
A. Founder is the owner and holder of record of 1,800,000 shares of Common
Stock of the Company (the "SHARES") purchased pursuant to a Founder's Stock
Purchase Agreement by and between the Company and the Founder dated
September 29, 1995 (the "FOUNDERS STOCK PURCHASE AGREEMENT").
B. The Founders Stock Purchase Agreement provides that the Shares are subject
to a right of repurchase in favor of the Company (the "REPURCHASE OPTION")
and that 37,500 of the Shares shall be released from the Repurchase Option
each month, subject to the terms and conditions of the Founders Stock
Purchase Agreement.
C. Founder now desires to transfer and resell to the Company 785,072 of the
Shares as to which the Repurchase Option has not lapsed (the "TRANSFERRED
SHARES").
D. Founder and the Company desire to acknowledge their mutual understanding
that the absolute rate at which Shares are released from the Repurchase
Option shall not be affected by the resale effected hereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
Parties hereby agree as follows:
1. PURCHASE AND SALE OF TRANSFERRED SHARES. Subject to the terms and
conditions contained herein, and for the consideration set forth below, Founder
hereby sells, transfers, delivers and assigns all of his right, title and
interest in and to the Transferred Shares to the Company, and the Company hereby
purchases such Transferred Shares from Founder. In consideration of the sale of
the Transferred Shares from Founder to the Company, the Company hereby delivers
to Founder, and
Founder hereby accepts from the Company. cash payment of the purchase price of
ten cents ($0.10) per share for the Transferred Shares, or a total of
$78,507.20.
2. TRANSFERRED SHARES FROM UNVESTED SHARES; SUBSEQUENT VESTING RATE. The
Parties agree that the Transferred Shares shall be deemed to have come from that
portion of the Shares not yet released from the Repurchase Option. The Parties
further agree that, subject to the other terms and conditions of the Founders
Stock Purchase Agreement, the absolute number of Shares released from the
Repurchase Option each month shall continue to be 37,500 and shall be unaffected
by the sale of the Transferred Shares to the Company.
3. REPRESENTATIONS AND WARRANTIES OF FOUNDER. Founder hereby represents and
warrants to the Company that:
3.1 TAS
3.2 POWER AND AUTHORITY TO TRANSFER. This Agreement, when executed and
delivered by Founder, shall constitute a valid and binding obligation of the
Founder, enforceable in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
3.3 EFFECT OF TRANSFER. The delivery of the Transferred Shares to the
Company by Founder as contemplated by this Agreement will transfer to the
Company good, valid and absolute title to, and beneficial ownership of, the
Transferred Shares, free and clear of all liens and encumbrances whatsoever,
except those that may be created by the Company itself.
3.4 ACCESS TO AND REVIEW OF COMPANY INFORMATION; SOPHISTICATION. By
virtue of his position within the Company, Founder has access to, and has
actually reviewed, such information regarding the Company and its Common Stock
that the Founder deemed appropriate in connection with the transactions
contemplated by this Agreement. Founder has a prior business and/or personal
relationship with the Company and/or its officers and directors and has the
capacity to protect his own interests in connection with the sale of the
Transferred Shares.
3.5 TAX CONSEQUENCES. To the extent he deemed appropriate, Founder has
reviewed with his own tax advisors the federal, state, and local tax
consequences of the sale of the Transferred Shares to the Company. Founder is
relying solely on such advisors and not on any statements or representations of
the Company or any of its agents. Founder understands that he (and not the
Company) shall be responsible for his own tax liability that may arise as a
result of the transactions contemplated by this Agreement.
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4. MISCELLANEOUS.
4.1 ENTIRE AGREEMENT This Agreement represents the entire agreement
between the Parties with respect to the subject matter hereof, and may only be
amended in a writing signed by the Party to be charged.
4.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of California without regard to conflict of laws
provisions.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
effective as of the date first written above.
NETGRAVITY, INC. (THE "COMPANY")
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxx, Chief Financial Officer and
Secretary
XXXXXX X. XXXXXXX ("FOUNDER")
/s/ Xxxxxx X. Xxxxxxx
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