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Exhibit 10.36
FOUNDER STOCK REPURCHASE AGREEMENT
This Founder Stock Repurchase Agreement is dated as of the first day
of June, 1998 (the "Effective Date") by and between MachOne Communications,
Inc., a California corporation (the "Company"), and Xxxxxxx Xxxxxxx ("Founder").
WITNESSETH:
WHEREAS, Founder is a founder and a key employee of the Company.
WHEREAS, Founder is the holder of 777,000 shares of the Company's
common stock (the "Original Shares"), which were purchased by Founder
pursuant to the Founders Stock Purchase Agreement by and between the
Company and Founder dated December 23, 1997 (the "Original Purchase
Agreement").
WHEREAS, the Company desires to repurchase and the Founder desires to
resell to Company certain of the Original Shares on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Number of Shares and Price Per Share. The Founder hereby agrees to
sell to Company and the Company agrees to repurchase from Founder seventy-seven
thousand (77,000) shares of the Company's Common Stock (the "Shares") from
Founder's Original Shares at Founder's original purchase price (of $0.001 per
share). The consideration for the repurchase of the Shares (the "Purchase
Price") will be the agreement by the Company to amend the promissory note
provided by Purchaser to Company in exchange for the purchase of the Original
Shares. The original principal amount of the note will be amended and reduced
from seven hundred seventy-seven dollars ($777.00) to a new principal amount of
seven hundred dollars ($700.00).
2. Repurchase Pursuant to the Provisions of the Unvested Share Repurchase
Option. The Company acknowledges that none of the events that would trigger the
Unvested Share Repurchase Option as set forth in the Founders Stock Purchase
Agreement (the "Unvested Share Repurchase Option") have occurred. However, the
parties acknowledge that the repurchase set forth herein is in their mutual
best interest and will benefit both parties by allowing for the restructure of
the equity ownership in the Company necessary for the ongoing success of the
Company. Accordingly, the parties agree that the repurchase of the Shares shall
be accomplished pursuant to the provisions of the Unvested Share Repurchase
Option, although no such right to repurchase shall exist with respect to the
remaining 700,000 shares of the Original Shares (the "Remaining Shares"),
except as set forth in Section 4 ("Unvested Share Repurchase Option") below.
Other than as set forth in Section 4, all other provisions of the Original
Purchase Agreement shall remain in full force and effect with respect to the
Remaining Shares.
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3. Representations and Warranties of the Founder. The Founder
represents and warrants to the Company as follows:
(a) Valid Title. The Founder is the lawful beneficial owner of
the Shares free and clear of any and all liens, encumbrances, restrictions and
claims of any kind. The Founder has full legal right, power and authority to
sell, assign, transfer and convey such Shares in accordance with the terms of
this Agreement. The delivery to the Company of the Shares pursuant to the
provisions hereof will transfer to the Company valid title thereto, free and
clear of any and all adverse claims.
(b) Requisite Power and Authority. The Founder has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and to carry out its provisions. All action required on
the part of the Founder for the lawful execution and delivery of this
Agreement has been or will be effectively taken prior to the date of this
Agreement. Upon its execution and delivery, this Agreement will be a valid and
binding obligation of the Founder, enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights and by general principles of equity that restrict the
availability of equitable remedies.
(c) No Conflicts. The performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
breach of or default under any material bond, debenture, note or other evidence
of indebtedness, or any material contract, indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which the Founder is
a party or by which the Founder or any Shares hereunder may be bound or, to the
best knowledge of the Founder, result in any violation of any law, order, rule,
regulation, writ, injunction or decree of any court or governmental agency or
body.
4. Unvested Share Repurchase Option. The Company shall have the option
(the "Unvested Share Repurchase Option") to reacquire any of the Remaining
Shares which have not vested in the Founder pursuant to subsection 4(a) (the
"Unvested Shares") under the terms set forth in this Section 4, which amends
and restates Section 2 of the Original Purchase Agreement.
(a) Vesting of Shares. The "Initial Vesting Date" shall be
October 3, 1997. The Remaining Shares will vest (the "Vested Shares") on and
after the Initial Vesting Date in accordance with the following formula:
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Number of Shares Vested
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On the Initial Vesting Date 240,625 shares will vest
For each of the following 42 full An additional 1.5625% of the
months of the Company's continuous Remaining Shares will vest
employment of Founder following the (10,938 shares) for each full
Initial Vesting Date month of service.
Provided that the aggregate number of shares of Remaining Shares
constituting Vested Shares may not exceed 700,000 shares (as adjusted for
stock splits and the like). In the event a fraction of a share is vested, the
number of vested shares shall be rounded to the nearest whole number.
(b) Exercise of Unvested Share Repurchase Option. If the Founder's
employment with the Company is terminated for any reason, with or without
cause, voluntarily or involuntarily, including termination due to death or
disability (as defined below), or if the Founder or the Founder's legal
representative attempts to dispose of any Unvested Shares other than as allowed
in this Agreement, the Company may exercise the Unvested Share Repurchase
Option by written notice to the Escrow Agent (as defined in Section 5) and to
the Founder or the Founder's legal representative within 60 days after such
termination or after the Company has received notice of the attempted
disposition.
(c) Payment for Shares and Return of Shares. Payment by the Company
to the Escrow Agent on behalf of the Founder or the Founder's legal
representative shall be made in cash within 60 days after the date of the
mailing or the written notice of exercise of the Unvested Share Repurchase
Option. For purposes of the foregoing, cancellation of any promissory note of
the Founder to the Company shall be treated as payment to the Founder in cash
to the extent of the unpaid principal and any accrued interest canceled. The
purchase price per share being purchased by the Company pursuant to the
Unvested Share Repurchase Option shall be $0.001 per share, adjusted
appropriately to reflect any stock split, stock dividend, recapitalization,
etc. Within 30 days after payment by the Company, the Escrow Agent shall give
the shares which the Company has purchased to the Company and shall give the
payment received from the Company to the Founder.
(d) Early Termination of Unvested Share Repurchase Option. The other
provisions of this Section 4 notwithstanding, upon any Transfer of Control (as
defined below), the Unvested Share Repurchase Option shall terminate as of a
date prior to the Transfer of Control, as the Board so determines, or if no
such determination is made, two days prior to the closing of the transaction
involving the Transfer of Control. Any such termination that was permissible
solely by reason of this subsection 4(d) shall be conditioned upon the
consummation of the Transfer of Control. For purposes of this subsection 4(d),
a Transfer of Control shall be deemed to have occurred upon any of the
following events: (i) the direct or indirect sale or exchange by the
shareholders of the Company of all or substantially all of the stock of the
Company where the shareholders of the Company before such sale or exchange do
not retain,
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directly or indirectly, at least a majority of the beneficial interest in the
voting stock of the Company; (ii) a merger in which the shareholders of the
Company before the merger do not retain, directly or indirectly, at least a
majority of the beneficial interest in the voting stock of the Company; or
(iii) the sale, exchange, or transfer of all or substantially all of the
Company's assets (other than a sale, exchange, or transfer to one or more
corporations where the shareholders of the Company before such sale, exchange,
or transfer retain, directly or indirectly, at least a majority of the
beneficial interest in the voting stock of the corporation(s) to which the
assets were transferred).
(e) Transfers Not Subject to the Unvested Share Repurchase Option.
The Unvested Share Repurchase Option shall not apply to a transfer of shares of
the Remaining Shares to the Founder's ancestors, descendants or spouse or to a
trustee for their benefit or the benefit of the Founder, provided that such
transferee shall agree in writing (in a form satisfactory to the Company) to
take the shares of the Remaining Shares subject to all the terms and conditions
of this Section 4.
(f) Assignment of Unvested Share Repurchase Option. The Company may
assign the Unvested Share Repurchase Option to one or more persons, who shall
have the right to exercise the Unvested Share Repurchase Option in his or her
own name for his or her own account.
5. Escrow. Founder agrees to instruct Xxxx Xxxx Xxxx & Freidenrich, a
Professional Corporation (the "Escrow Agent"), to take all such action
necessary with respect to the Original Shares to properly reflect the
repurchase of the Shares as set forth herein. This Agreement, when executed,
shall serve as such instruction.
6. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
7. Entire Agreement; Amendments. This Agreement shall be construed under
the laws of the State of California (as it applies to agreements between
California residents, entered into and to be performed entirely within
California), and constitutes the entire agreement of the parties with respect
to the subject matter hereof superseding all prior written or oral agreements,
and no amendment or addition hereto shall be deemed effective unless agreed to
in writing by the parties. This Agreement shall be deemed an amendment to the
Original Purchase Agreement, however any provision of the Original Purchase
Agreement not specifically amended hereby shall remain in full force and effect.
8. Right to Specific Performance. The Founder agrees that the Company
shall be entitled to a decree of specific performance of the terms hereof or an
injunction restraining violation of this Agreement, said right to be in
addition to any other remedies available to the Company.
9. Separability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless
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continue in full force and effect without being impaired or invalidated in any
way and shall be construed in accordance with the purposes and tenor and effect
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"FOUNDER" "COMPANY"
Xxxxxxx Xxxxxxx MachOne Communications, Inc.
/s/ XXXXXXX XXXXXXX By: /s/ [SIGNATURE ILLEGIBLE]
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Xxxxxxx Xxxxxxx
Address: X.X. Xxx 000 Title: Secretary
Xxxx, Co. 94957
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EXHIBIT A
CONSENT OF SPOUSE
I, ______________, spouse of ________________, acknowledge that I have read
the Founder Stock Repurchase Agreement dated as of June 1, 1998, to which this
Consent is attached as Exhibit A (the "Agreement") and that I know its contents.
I am aware that by its provisions the Company has repurchased certain shares of
stock of the Company which my spouse owns pursuant to the Agreement including
any interest I might have therein, and to the extent as may be necessary, I
consent to the repurchase. I am aware that certain other restrictions continue
to be imposed upon the sale or other disposition of the Remaining Shares during
my spouse's lifetime and in the event of his death.
I agree that my interest, if any, in the Remaining Shares subject to the
Original Purchase Agreement shall be bound by the Original Purchase Agreement
and further understand and agree that any community property interest I may have
in the Shares shall be similarly bound by the Agreement.
Signed:_________________________
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EXHIBIT A
CONSENT OF SPOUSE
I, ______________, spouse of ________________, acknowledge that I have read
the Founder Stock Repurchase Agreement dated as of June 1, 1998, to which this
Consent is attached as Exhibit A (the "Agreement") and that I know its contents.
I am aware that by its provisions the Company has repurchased certain shares of
stock of the Company which my spouse owns pursuant to the Agreement including
any interest I might have therein, and to the extent as may be necessary, I
consent to the repurchase. I am aware that certain restrictions continue to be
imposed upon the sale or other disposition of the Remaining Shares during my
spouse's lifetime and in the event of his death.
I agree that my interest, if any, in the Remaining Shares subject to the
Original Purchase Agreement shall be bound by the Original Purchase Agreement
and further understand and agree that any community property interest I may have
in the Shares shall be similarly bound by the Agreement.
Signed:
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