1
EXHIBIT 10.52
STOCK PURCHASE AND RESTRICTION AGREEMENT
----------------------------------------
STOCK PURCHASE AND RESTRICTION AGREEMENT by and between Alpha-Beta
Technology, Inc. (the "Company") and Xxxxxx X. Xxxxx (the "Officer"), dated as
of May 19, 1998.
WHEREAS, the Officer is the Vice President, Finance and Chief Financial
Officer of the Company; and
WHEREAS, pursuant to the Company's 1997 Stock Option and Grant Plan (the
"Plan"), the Company desires to issue and sell, and the Officer desires to
purchase, 30,000 shares of the Company's common stock, par value $.01 per share,
at a purchase price of $.01 per share, subject to the terms and conditions set
forth herein and in the Plan.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
Section 1. DEFINITIONS. For the purposes of this Agreement, the following
terms shall have the following respective meanings:
(a) "ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(b) "COMMON STOCK" shall mean the Company's common stock, par
value $.01 per share.
(c) "DISABILITY" shall mean the physical or mental illness or
disability of the Officer such that, in the good faith judgment of a reputable
physician, he shall be unable to perform his duties as an officer of the Company
and such inability may reasonably be expected to be permanent.
(d) "NON-VESTED SHARES" shall mean all the Shares that are not
Vested Shares.
(e) "PERMITTED TRANSFEREES" shall mean the Officer's spouse,
parents, brothers, sisters, children (natural or adopted), stepchildren or
grandchildren or a trust for their sole benefit.
(f) "SHARES" shall mean the 30,000 shares of Common Stock being
purchased by the Officer pursuant to the terms of this Agreement.
2
(g) "TERMINATION EVENT" shall mean the termination of the
Officer as a full-time employee of the Company, whether by reason of retirement,
discharge or any other reason, voluntary or involuntary, PROVIDED, HOWEVER, that
the death or Disability of the Officer shall not be a Termination Event.
(h) "VESTED SHARES" shall mean all Shares which have been vested
in accordance with the following vesting schedule, provided that the Officer
remains a full-time employee of the Company as of each respective Vesting Date:
Number of Shares Cumulative Number of
Vesting Date Becoming Vested Shares Vested
------------ --------------- -------------
January 12, 1999 10,000 10,000
April 12, 1999 2,500 12,500
July 12, 1999 2,500 15,000
October 12, 1999 2,500 17,500
January 12, 2000 2,500 20,000
April 12, 2000 2,500 22,500
July 12, 2000 2,500 25,000
October 12, 2000 2,500 27,500
January 12, 2001 2,500 30,000
Notwithstanding anything contained herein to the contrary, all of the
Shares issued to the Officer shall vest upon the occurrence of any one of the
following events if the Officer is a full-time employee of the Company on the
day prior to the date of such event: (i) a merger or consolidation in which the
Company is not the surviving entity; (ii) the sale of substantially all of the
Company's assets to another entity; (iii) a dissolution of the Company; or (iv)
the death or Disability of the Officer.
Section 2. PURCHASE AND SALE OF SHARES; INVESTMENT REPRESENTATIONS.
(a) PURCHASE AND SALE. Pursuant to the terms hereof, the Company
hereby sells to the Officer, and the Officer hereby purchases from the Company,
30,000 Shares at a purchase price of $.01 per Share.
2
3
(b) INVESTMENT REPRESENTATIONS. In connection with the purchase
and sale of the Shares contemplated by Section 2(a) above, the Officer hereby
represents and warrants to the Company as follows:
(i) The Officer is purchasing the Shares for his own
account for investment only, and not for resale or with a view to the
distribution thereof.
(ii) The Officer has had such an opportunity as he has
deemed adequate to obtain from representatives of the Company such
information as is necessary to permit him to evaluate the merits and risks
of his investment in the Company.
(iii) The Officer has sufficient experience in business,
financial and investment matters to be able to evaluate the risks involved
in the purchase of the Shares and to make an informed investment decision
with respect to such purchase.
(iv) The Officer can afford a complete loss of the value
of the Shares and is able to bear the economic risk of holding such Shares
for an indefinite period.
(v) The Officer understands that the Shares are not
registered under the Act or any applicable state securities or "blue sky"
laws and may not be sold or otherwise transferred or disposed of in the
absence of an effective registration statement under the Act and under any
applicable state securities or "blue sky" laws (or exemptions from the
registration requirements thereof).
Section 3. REPURCHASE OPTION.
3.1 REPURCHASE OPTION. In the event of a Termination Event, the
Company shall have the right and option (the "Repurchase Option") to repurchase
all of the Non-Vested Shares at a repurchase price equal $.01 per Share. The
Company may elect to exercise its Repurchase Option pursuant to the provisions
of Section 3.2 below. In the event that the Company does not elect to exercise
its Repurchase Option in accordance with Section 3.2, all of the Non-Vested
Shares shall thereafter be deemed to be Vested Shares.
3.2 EXERCISE OF REPURCHASE OPTION AND CLOSING. The Company may
exercise the Repurchase Option by delivering or mailing to the Officer, in
accordance with Section 8.6, written notice of its election to exercise within
45 days after the Termination Event. If and to the extent the Repurchase Option
is not so exercised within such 45-day period, the Repurchase Option shall
automatically expire and terminate effective upon the expiration of such 45-day
period. The closing of any such repurchase of Non-Vested Shares shall be held at
the principal office of the Company, or at such other location as the parties to
such repurchase may mutually determine. At any such closing, the Company shall
pay to the Officer and/or any holder of the Non-Vested Shares the aggregate
repurchase price for the
3
4
Non-Vested Shares to be purchased by certified or bank check. At such time, the
Officer and/or any holder of the Non-Vested Shares shall deliver to the Company
the certificate or certificates representing the Non-Vested Shares so
repurchased, duly endorsed for transfer, free and clear of any lien or
encumbrances.
Section 4. RESTRICTIONS ON TRANSFER OF SHARES. None of the Shares
(whether Vested Shares or Unvested Shares) now owned or hereafter acquired shall
be sold, assigned, transferred, pledged, hypothecated, given away or in any
other manner disposed of or encumbered, whether voluntarily or by operation of
law, unless such transfer is in compliance with all foreign, federal and state
securities laws (including, without limitation, the Act), and such disposition
is in accordance with the terms and conditions of this Section 4. In connection
with any transfer of Shares, the Company may require an opinion of counsel to
the transferor, satisfactory to the Company, that such transfer is in compliance
with all foreign, federal and state securities laws (including without
limitation, the Act). Any attempted disposition of Shares not in accordance with
the terms and conditions of this Section 4 shall be null and void, and the
Company shall not reflect on its records any change in record ownership of any
Shares as a result of any such disposition, shall otherwise refuse to recognize
any such disposition and shall not in any way give effect to any such
disposition of any Shares. Subject to the foregoing general provisions, the
Unvested Shares may only be transferred pursuant to the following specific terms
and conditions:
(a) TRANSFERS TO PERMITTED TRANSFEREES. The Officer may
sell, assign, transfer or give away any or all of the Unvested Shares to
Permitted Transferees; provided, however, that such Permitted Transferee(s)
shall, as a condition to any such transfer, agree to be subject to the
provisions of this Agreement (including without limitation, the provisions of
Section 3 and this Section 4) and shall have delivered a written acknowledgment
to that effect to the Company.
(b) TRANSFERS UPON DEATH. Upon the death of the Officer,
the Unvested Shares held by the Officer may be transferred and distributed by
will or other instrument taking effect at his death or by the laws of descent
and distribution to the Officer's estate, executors, administrators and personal
representatives, and then to the Officer's heirs, legatees or distributees
whether or not such heirs, legatees or distributees are Permitted Transferees;
provided, however, that any such transferees shall be subject to the provisions
of this Section 4.
Section 5. LEGEND. Any certificate(s) representing the Shares shall
carry the following legends:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE RESTRICTIONS, TERMS AND
CONDITIONS (INCLUDING REPURCHASE AND RESTRICTIONS AGAINST
TRANSFERS)
4
5
CONTAINED IN A CERTAIN STOCK PURCHASE AND RESTRICTION AGREEMENT
DATED MAY 19, 1998 BETWEEN ALPHA-BETA TECHNOLOGY, INC. (THE
"COMPANY") AND XXXXXX X. XXXXX (COPIES OF WHICH ARE AVAILABLE AT
THE OFFICES OF THE COMPANY FOR EXAMINATION).
and
THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION FROM
REGISTRATION.
Section 6. ESCROW. In order to more effectively carry out the
provisions of Sections 3 and 4 of this Agreement, the Company shall hold the
Shares in escrow together with separate stock powers executed by the Officer in
blank for transfer. The Company shall not dispose of the Shares except as
otherwise provided in this Agreement. If the Company exercises the Repurchase
Option, the Company is hereby authorized by the Officer to date and complete the
stock powers necessary for the transfer to the Company of the Shares it has duly
elected to purchase and to transfer the Shares being purchased to the Company.
At such time as any Vested Shares are transferred pursuant to the terms of this
Agreement, the Company shall, at the written request of the Officer, deliver to
the Officer (or his proposed transferee) a certificate representing such Shares
with the balance of the Shares to be held in escrow pursuant to this Section 6.
All Shares which remain in escrow upon the termination of this Agreement shall
then be delivered to the Officer and/or the record holders of such Shares. The
right to vote the Shares and to receive cash dividends on the Shares shall
remain in the Officer and any transferee of the Officer pursuant to the terms of
this Agreement unless and until the Shares are purchased by the Company pursuant
to the Repurchase Option.
Section 7. WITHHOLDING TAXES. The Officer has agreed to elect to
recognize ordinary income in the year of acquisition of the Shares in accordance
with Section 83(b) of the Internal Revenue Code of 1986, as amended. In
connection therewith, the Company hereby agrees to loan the Officer an amount up
to $57,862.00 representing the amount of income taxes incurred by the Officer in
connection with the purchase of the Shares. The Officer shall (i) apply the
proceeds of such loan to all withholding or other taxes determined to be due in
connection with the purchase of the Shares, and (ii) execute a promissory note
(the "Note") in favor of the Company in the form attached hereto as EXHIBIT A on
the date hereof. In addition to the foregoing, the Officer acknowledges and
agrees that the Company has the right to deduct from payments of any kind
otherwise due to the Officer, or from the Shares held pursuant to Section 6
hereof, any other federal, state or local taxes of any kind required by law to
be withheld with respect to the purchase of the Shares by the Officer.
5
6
Section 8. MISCELLANEOUS PROVISIONS.
8.1 EQUITABLE RELIEF. The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of this Agreement and
that equitable relief, including specific performance and injunctive relief, may
be used to enforce the provisions of this Agreement.
8.2 CHANGE AND MODIFICATIONS. This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Officer.
8.3 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts.
8.4 HEADINGS. The headings are intended only for convenience in
finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
8.5 SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
8.6 NOTICES. All notices, requests, consents and other
communications shall be in writing and be deemed given when delivered
personally, by telex or facsimile transmission or when received if mailed by
first class registered or certified mail, postage prepaid. Notices to the
Company or the Officer shall be addressed as set forth underneath their
signatures below, or to such other address or addresses as may have been
furnished by such party in writing to the other. Notices to any holder of the
Shares other than the Officer shall be addressed to the address furnished by
such holder to the Company.
8.7 BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their respective
successors, assigns, and legal representatives. The Company has the right to
assign this Agreement, and such assignee shall become entitled to all the rights
of the Company hereunder to the extent of such assignment.
8.8 STOCK SPLIT, STOCK DIVIDEND, ETC. The provisions of this
Agreement shall be adjusted appropriately in the event of a stock split, stock
dividend, recapitalization or other similar event of the Company.
6
7
IN WITNESS WHEREOF, the Company and the Officer have executed this
Agreement as of the date first above written.
ALPHA-BETA TECHNOLOGY, INC.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By: /s/ Spiros Jamas
-------------------------------------
Name: Spiros Jamas
Title: President and Chief Executive
Officer
OFFICER
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
Address:
--------
X.X. Xxx 0000
Xxxxxx, XX 00000
8
EXHIBIT A
[Form of Promissory Note]
May __, 1998
FOR VALUE RECEIVED, the undersigned, Xxxxxx X. Xxxxx with an address of
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Debtor"), hereby promises to
pay to the order of Alpha-Beta Technology, Inc., a Massachusetts corporation
(the "Payee"), in lawful money of the United States of America in immediately
available funds, at the offices of the Payee located at Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 on January 12, 2001, the principal sum of
___________ DOLLARS ($________) or such lesser amount as shall equal the
principal amount of advances outstanding from the Payee to the Debtor pursuant
to Section 7 of that certain Stock Purchase and Restriction Agreement, dated as
of May __, 1998 (the "Agreement"), by and between the Payee and the Debtor, with
interest at the rate of 5.43% per annum, compounded semi-annually on the
outstanding balance.
Interest shall be payable on each of January 12, 1999, January 12, 2000
and January 12, 2001.
Upon the occurrence of a Termination Event (as defined in the
Agreement), the outstanding balance of and accrued interest on this Note shall
become immediately due and payable.
This Note is subject to the terms and conditions set forth in that
certain Letter Agreement, dated as of the date hereof, by and between the Payee
and the Debtor.
The debtor hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
This Note shall be construed in accordance with and be governed by the
laws of The Commonwealth of Massachusetts.
9
IN WITNESS WHEREOF, the undersigned has executed this Note on the date
first set forth above.
--------------------------
Xxxxxx X. Xxxxx
A-2
