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EXHIBIT 99.12
PUYALLUP INTEGRATED CIRCUIT COMPANY
REPURCHASE AND RIGHT OF FIRST REFUSAL AGREEMENT
This REPURCHASE AND RIGHT OF FIRST REFUSAL AGREEMENT (the
"Agreement") is entered into as of ______________, 2000, between PUYALLUP
INTEGRATED CIRCUIT COMPANY, a Washington corporation (the "Company"), and
__________ (the "Shareholder").
RECITALS
A. The Company granted the Shareholder an option to purchase ____
shares of the Company's Common Stock, no par value (the "Shares") under the
terms of the Company's 1996 Stock Option Plan (the "Plan") and of the letter
agreement between the Shareholder and the Company dated ____________, 2000 (the
"Option Agreement").
B. On ____________, 2000, the Shareholder elected to purchase
___________ Shares pursuant to the Option Agreement, and may elect to purchase
any remaining Shares in the future.
C. As a condition to the Shareholder's election to purchase Shares
under the Option Agreement, the Shareholder is required to execute this
Agreement.
D. The Shareholder acknowledges that the Company, other present and
future holders of options to acquire shares of the Company's stock, and future
investors in the Company, will act in reliance on Shareholder's commitments in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth in this Agreement, the parties agree as follows:
AGREEMENT
1. Repurchase Option.
1.1 Right to Repurchase. The Company shall have the right and option to
purchase from the Shareholder (the "Repurchase Option") any Shares which the
Shareholder obtained pursuant to the Option Agreement, or any shares of the
Company's common stock that are otherwise not subject to the Repurchase Option,
subject to the terms and conditions of this
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Agreement, in the event of termination of the Shareholder's employment with the
Company for any reason, voluntary or involuntary, for the Repurchase Price. If
there is a conflict between this Agreement and any other agreement to repurchase
any Shares held by the Shareholder, the provisions of such other agreement shall
prevail.
1.2 Notice of Exercise. The Company shall give the Shareholder written
notice of the Company's election to exercise the Repurchase Option ("Notice of
Exercise") within 30 days after the date of the event giving rise to the
Repurchase Option. The Notice of Exercise shall state (a) that the Company is
exercising the Repurchase Option, and (b) the number of Shares subject to the
Repurchase Option. If the Company does not give the Shareholder a Notice of
Exercise within such 30-day period, none of the Shares shall be subject to the
Repurchase Option after the expiration of such period.
1.3 Repurchase Price. The purchase price for the Shares subject to the
Repurchase Option (the "Repurchase Price") shall be:
1.3.1 the same price per share as the Shareholder paid for the
Shares under the Option Agreement or otherwise for any Shares issued to the
Shareholder less than one year before the event giving rise to the Repurchase
Option, other than in the event of the Shareholder's death; except that
1.3.2 in the event of the Shareholder's death at any time, or
for any Shares issued to the Shareholder more than one year before the event
giving rise to the Repurchase Option, the Repurchase Price shall be an amount
computed by multiplying the number of Shares times (a) the per share value of
the Company's Common Stock as determined by the Company's Board of Directors,
within the 18 months preceding the event giving rise to the Repurchase Option,
for the purposes of stock repurchases under stock repurchase agreements such as
this Agreement, or (b) if no such determination has been made, the per share
value of the Company's Common Stock determined by the Company's shareholders for
purposes of the most recent Total Current Net Evaluation form within the 18
months preceding the event giving rise to the Repurchase Option, or (c) if none
of the events specified in (a) or (b) above has occurred, then the per share
value as determined by mutual agreement of the parties, or if no agreement is
reached, by an MAI appraiser selected by the Company, with the fee for such
appraiser to be shared equally by the parties.
2. Right of First Refusal.
2.1 Restrictions on Transfers. The Shareholder shall not transfer,
assign, discount, exchange, sell or otherwise dispose of any or all of the
Shares, except in accordance with the provisions of this Agreement.
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2.2 Offer. If the Shareholder desires to sell or transfer the Shares to
any party other than the Company, the Shareholder shall obtain an unconditional,
bona fide, written offer ("Offer") from the proposed transferee (the "Offeree")
and transmit a copy of the Offer to the Company. The Offer shall set forth in
reasonably precise details the terms and conditions of purchase or transfer,
including the number of Shares ("Offered Shares"), purchase price per share, and
terms of payment, if any. Upon the Company's request, the Shareholder shall
promptly furnish such information as may reasonably be requested in order to
establish the bona fides of the Offer. For the purposes of this Section 2, a
transfer of Shares by gift, if otherwise without consideration, shall be deemed
to be an Offer from the recipient to purchase such Shares for no consideration.
2.3 Company's Right. The receipt of the Offer by the Company shall give
it an option to purchase all (but not less than all) of the Offered Shares at
the same price and upon the same terms and conditions set forth in the Offer.
However, if the Offer provides for consideration other than solely cash or
promissory notes, the Shareholder shall advise the Board of Directors of the
nature of the non-monetary consideration. The Board of Directors shall determine
in good faith the fair market value of such non-monetary consideration, which
determination, if reasonable, shall be conclusive and binding. In such case, the
Company shall have the option to purchase the Offered Shares for cash or by
promissory note, as set forth in Section 3.1, equal to the fair market value of
the non-monetary consideration determined by the Board of Directors.
2.4 Exercise of Right. If the Company desires to purchase the Offered
Shares, then the Company shall give the Shareholder a Notice of Exercise
electing to exercise its Right of First Refusal on or before the 30th day after
receipt of a copy of the Offer. If the Company does not give the Shareholder a
Notice of Exercise within such 30-day period, then the Shareholder may sell the
Offered Shares to the Offeree upon the terms and conditions set forth in the
Offer, free of the restrictions contained in this Agreement. However, the
Company's right of first refusal shall remain in force if the Shareholder does
not consummate the sale of the Offered Shares to the Offeree, upon the terms set
forth in the Offer, within 60 days after giving notice of the Offer to the
Company.
3. Terms of Purchase. The Company's purchase of Shares under either
Section 1 or Section 2, above, shall be pursuant to the following terms:
3.1 Manner of Payment. The Company, at the Company's option, shall pay
the Purchase Price to the Shareholder (a) in cash or by bank-certified or
cashier's check, or (b) by not less than 25% cash down with the balance payable
pursuant to a promissory note providing for three equal annual installments,
plus simple interest on the unpaid balance at an annual rate equal to one
percent above the annual percentage rate published by the Wall Street Journal as
the commercial "Prime Rate". The initial interest rate shall be determined as of
the Closing
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Date (as defined below), and shall be adjusted annually as of the first day of
January in each consecutive year to the rate in effect on the first business day
in January of each such year.
3.2 Closing. The closing of the Company's purchase of the Shares shall
occur 20 days after the date of the Notice of Exercise or on the next business
day if the twentieth day is not a business day (the "Closing Date"), at the
offices of the Company.
3.3 Delivery of Shares. Upon tender of the Purchase Price to the
Shareholder, the Shareholder shall endorse and deliver to the Company the stock
certificates evidencing the Shares being purchased and stock powers indorsed in
blank for each certificate.
4. Termination. This Agreement shall terminate and be of no further force
and effect upon the occurrence of the closing of (a) an acquisition of the
Company (whether by merger, consolidation, sale of all or substantially all
assets, stock sale or otherwise) in which the shareholders of the Company
receive consideration in exchange for their shares, or (b) a firmly underwritten
public offering by the Company of any equity securities of the Company, which
offering is registered with the Securities and Exchange Commission.
5. Stock Dividends and Similar Events. If from time to time during the
term of this Agreement there is any stock dividend, stock split, combination of
shares, or reclassification of the outstanding stock of the Company, then the
number of Shares shall be proportionately adjusted.
6. Certificates. All certificates representing, in whole or in part, all
or any portion of the Shares shall have endorsed thereon the following legend:
These shares are subject to restrictions on
transfer and other restrictions by virtue of
a Repurchase and Right of First Refusal
Agreement dated as of ____________, 2000.
7. Certain Rights of the Company. The Company shall not be required (a) to
transfer on its books any of the Shares that have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or (b) to treat
any person to whom any such Shares that have been so transferred as the owner of
such Shares or to accord that person the right to vote such Shares or to receive
any dividends.
8. Pledge. This Agreement shall not prevent the Shareholder from pledging
or encumbering the Shares to secure a debt or liability of the Shareholder.
However, if the creditor to whom the Shares are pledged or for whose benefit the
Shares are encumbered desires to initiate any action to realize on the Shares,
whether through retention of the Shares in satisfaction of the Shareholder's
obligation, a private disposition, a public sale or otherwise,
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then (a) such action will be deemed a transfer of the Shares subject to this
Agreement, and (b) such creditor may act for Shareholder in giving the notices
required by this Agreement.
9. General.
9.1 Further Action. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the intent of this Agreement.
9.2 Notice. Any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
or upon the date three business days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed to the other party at
the address shown below or at such other address as the party may designate in
writing to the other party.
9.3 Binding Effect. This Agreement may not be assigned and no duties
under this Agreement may be delegated by the Shareholder, except with the prior
written consent of the Company. The rights and obligations under this Agreement
shall inure to the benefit of and bind the successors and assigns of the Company
and, subject to the restrictions on transfer and other provisions set forth in
this Agreement, any permitted assigns of the Shareholder.
9.4 Severability. If any part of this Agreement shall be held by a
court of proper jurisdiction to be unenforceable, then the balance of the
Agreement shall continue in full force and effect, unless such construction
would clearly be contrary to the intention of the parties.
9.5 Governing Law. This Agreement shall be governed by the law of the
State of Washington. The parties consent to the jurisdiction and venue of any
appropriate court in King County, Washington.
9.6 Legal Costs. The prevailing party in any legal action that arises
from or is related to this Agreement shall be entitled to reimbursement from the
non-prevailing party of any costs and reasonable attorney fees the prevailing
party incurs in connection with such legal action, including those incurred upon
appeal or in any arbitration or bankruptcy proceeding.
9.7 Entire Agreement; Amendment; Waiver. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement, and cancels and revokes any prior understanding or agreements
concerning its subject matter. This Agreement cannot be amended or any of its
provisions waived, except in writing signed by all of the parties, or by written
waiver signed by the party or parties granting the waiver. No waiver of any one
breach shall constitute or be construed as a subsequent waiver of any subsequent
breach.
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Dated as of the first date written above.
SHAREHOLDER: Address:
__________________________________
________________________________ __________________________________
__________________________________
COMPANY:
PUYALLUP INTEGRATED CIRCUIT Address:
COMPANY
000 X. 000xx Xxxxxx
Xxxxx 000
By _____________________________ Xxxxxxx Xxx, Xxxxxxxxxx 00000-0000
Its: _______________________
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