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[CHAPARRAL NETWORK STORAGE, INC. LOGO] EXHIBIT 10.30
COMMON STOCK PURCHASE AGREEMENT
(Option Exercise)
This Common Stock Purchase Agreement (the "Agreement") is made as of
the ____ day of _________, 1999, by and between CHAPARRAL NETWORK STORAGE, INC.,
a Delaware corporation (the "Company"), __________________ ("Purchaser") and
_____________ or other designated escrow agent (as Escrow Agent under Section 4
of this Agreement).
The parties agree as follows:
1. Common Stock Purchase.
1.1 Purchase. Subject to the terms and conditions of this
Agreement, the Company hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from the Company, on the Closing
Date (as defined herein) ______________ shares of the Company's Common
Stock (the "Shares"), at a price of $_________________ per share
("Original Issuance Price") and an aggregate purchase price of
$_____________________. The term "Shares" refers to the purchased
Shares, all securities or property received in replacement of Shares,
all securities or property distributed with respect to Shares, in any
case by way of stock dividends, splits or consolidations, or pursuant
to any re-capitalization, consolidation, merger, reorganization, or the
like.
1.2 Payment. The aggregate purchase price shall be paid by
Purchaser by check or wire transfer of funds.
2. Closing; Delivery
2.1 Closing. The purchase and sale of the Shares shall occur
at a closing (the "Closing") to be held at the principal office of the
Company simultaneously with the execution of this Agreement by the
parties, or on such other date as they may agree (the "Closing Date").
2.2 Delivery. At the Closing, the Company will deliver to
Purchaser a certificate representing the Shares to be purchased by him
(which shall be issued in Purchaser's name) against payment of the
purchase price therefor. The purchase price for the Shares shall be paid
on the Closing Date by delivery of the consideration referenced in
Section 1.2 above.
3. Limitations on Transfer. In addition to any other limitation
on transfer created by applicable securities laws, Purchaser shall not
assign, encumber, or dispose of any interest in the Shares except as
provided in this Section 3.
3.1 Right of First Refusal.
(a) In the event Purchaser or his transferee desires
(or is required) to sell or transfer in any manner any of the
Shares, Purchaser shall first offer such Shares for sale to
the Company upon the terms and conditions specified herein
("Right of First Refusal") by delivering a notice (the
"Notice") to the Company stating
(i) his bona fide intention to sell or
otherwise transfer such Shares,
(ii) the number of such Shares to be
sold to otherwise transferred,
(iii) the price for which Purchaser
proposes to sell such Shares,
(iv) the name of the proposed buyer or
transferee, and
(v) all additional terms and conditions,
if any, of the proposed sale or transfer.
Purchaser shall attach to the Notice a copy
of the written offer, if any, reflecting the terms and
conditions of the proposed sale or transfer of the Shares to
the third party. In the
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event of a transfer not involving a sale of the Shares for a
specific sum of money, or if, in the sole judgement of the
Company's Board of Directors, the proposed transfer does not
involve a price for the Shares negotiated by Purchaser and its
proposed buyer or transferee in a bona fide "arm's length
transaction", the price of the Shares shall be determined by
the Company's Board of Directors in the manner specified in
Section 3.3 below.
(b) Within sixty (60) days following receipt by the
Company of the Notice ("Acceptance Period"), the Company (or
is assignee) may elect to purchase all or a portion of the
Shares to which the Notice refers, at the price per Share and
on the same terms and conditions (or terms and conditions as
reasonably similar as possible) as set forth in the Notice, or
at the price per Share determined pursuant to Section 3.3 in
the event that the price of the Shares is to be determined by
the Company's Board of Directors under Section 3.1 (a).
(c) If the Company (or its assignee) elects to
purchase such Shares hereunder, it shall notify Purchaser, in
writing, of its intention to purchase such Shares hereunder
and either (1) set a date for the closing of the transaction
at a place specified by the Company not later than thirty (30)
days from the date of such notice, at which time the Company
(or its assignee) shall tender payment for the Shares, or (2)
include payment for the Shares with the Company's notice to
Purchaser. At such closing, the certificate(s) representing
the Shares so purchased shall be delivered to the Company and
canceled (and the Shares transferred to the Company's
assignee, if applicable) as of the date of the mailing of the
Company's notice and, thereafter, shall be promptly returned
by Purchaser to the Company by certified or registered mail.
(d) If the Company (or its assignee) does not elect
to purchase all of the Shares to which the Notice refers,
Purchaser may sell or otherwise transfer the Shares not
purchased to the third party named in the Notice at the price
and on the terms and conditions specified in the Notice, or at
a higher price; provided that such sale or transfer is
consummated within sixty (60) days from the earlier of
(i) the lapse of the Acceptance Period, or
(ii) the date of the Company's notice,
whether written or oral, advising Purchaser that the
Company does not intend to purchase the Shares
hereunder; provided, further, that any such sale or
transfer is made in accordance with all of the terms
and conditions set forth in this Agreement.
In the event the Shares are not disposed of by
Purchaser within such sixty (60) day period, such Shares shall
once again be subject to the Right of First Refusal.
3.2 Involuntary Transfer.
(a) In the event of any transfer by operation of law
or other involuntary transfer, of all, or a portion, of the
Shares, the Company shall have an option to purchase all of
the Shares transferred (the "Involuntary Transfer Option") at
a price set pursuant to Section 3.3. Upon such a transfer, the
person acquiring the Shares shall promptly notify the
Secretary of the Company of such transfer.
(b) The Company (or its assignee) shall notify
Purchaser and the person acquiring the Shares as to whether
the Company (or its assignee) wishes to purchase the shares
pursuant to the Involuntary Transfer Option within forty-five
(45) days following the date on which the Company was notified
of the transfer. If the Company (or its assignee) elects to
purchase such Shares hereunder it shall set a date for the
closing of the transaction at a place specified by the Company
not later than thirty (30) days from the date of the Company's
notice to Purchaser and the person acquiring the Shares. At
such closing, the Company (or its assignee) shall tender
payment for the shares in the form of a check, cancellation of
Purchaser's indebtedness to the Company, or some combination
thereof, and the certificate(s) representing the Shares so
purchased shall be canceled.
3.3 Determination of Price by Board. With respect to the
Shares to be transferred pursuant to the Right of First Refusal or the
Involuntary Transfer Option where the price per Share is to be
determined pursuant to this Section 3.3, the price per Share shall be
a price set by the Board of Directors of the Company that is
determined by the Board to reflect the then current value of such
Shares. The
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Company shall notify Purchaser, his representative, or the person
acquiring the Shares under Section 3.2 of the price so determined
within forty-five (45) days after receipt by the Company of written
notice of the transfer or proposed transfer of the Shares.
3.4 Restriction on Alienation. Any sale, transfer, or
disposition or purported sale, transfer, or disposition or any of the
shares by Purchaser shall be null and void unless the terms,
conditions, and provisions of this Agreement are strictly complied
with. Purchaser hereby authorizes and directs the Transfer Agent of the
Company to transfer the Shares as to which the Right of First Refusal
or Involuntary Transfer Option has been exercised from Purchaser to the
Company (or its assignee). Purchaser further authorizes the Company to
refuse, or to cause its Transfer Agent to refuse, to transfer, or
record any Shares to be transferred in violation of this Agreement.
3.5 Assignment by Company. The Company's Right of First
Refusal, and Involuntary Transfer Option may be assigned, in whole or
in part, to any shareholder or shareholders of the Company.
3.6 Obligations Binding Upon Transferees. All transferees of
Shares or any interest therein will receive and hold such Shares or
interests subject to the provisions of this Agreement, including,
insofar as applicable, the Company's Right of First Refusal, and
Involuntary Transfer Option under this Section 3. Any sale or transfer
of the Shares shall be void unless the provisions of this Agreement are
met.
3.7 Termination of Rights. The Right of First Refusal, and the
Involuntary Transfer Option granted by this Section 3 shall terminate
(a) on the occurrence of the merger or consolidation of the Company
into, or the sale of all or substantially all of the Company's assets,
to another entity, except that these restrictions on transfer shall not
terminate if immediately after such merger, consolidation, or sale of
assets, at least fifty-one percent (51%) of the capital stock of such
other corporation is owned by persons who are holders of Shares of
capital stock of the Company immediately before such merger,
consolidation, or sale, or (b) at such time as a public market exists
for the Company's Common Stock (or any other stock issued to purchasers
in exchange for the Shares purchased under this Agreement). For the
purpose of this Agreement, a "public market" shall be deemed to exist
if the Common Stock is listed on a national securities exchange (as
that term is used in the Securities Exchange Act of 1934), or the
Common Stock is traded on the over-the-counter market and prices are
published daily on business days in a recognized financial journal.
3.8 Replacement Certificate. In the event the restrictions
imposed by this Agreement shall be terminated as provided in this
Section 3, a new certificate or certificates representing the Shares
shall be issued, on request, without the legend referred to in Section
6.1 (b) herein.
3.9 Excluded Transfers. The restrictions on transfer of this
Section 3 shall not apply to an inter-vivos transfer to Purchaser's
ancestors or descendants or spouse or to a Trustee for their benefit,
provided that such transferee shall take such Shares subject to all the
terms of this Agreement, including restrictions on further transfer.
3.10 Indebtedness. Notwithstanding any provision to the
contrary in this Agreement, any payment by the Company for purchase of
Shares from Purchaser may be made by cancellation of any indebtedness
to the Company from Purchaser.
3.11 Market Standoff Agreement. Purchaser, if requested by the
Company and an underwriter of Common Stock (or other securities) of
the Company, agrees not to sell or otherwise transfer or dispose of
any Common Stock (or other securities) of the Company held by
Purchaser during the period not to exceed one hundred and eighty (180)
days as requested by the managing underwriter following the effective
date of a registration statement of the Company filed under the
Securities Act (as hereafter defined), provided that all officers and
directors of the Company are required to enter into similar
agreements. Such agreement shall be in writing in the form
satisfactory to the Company and such underwriter. The Company may
impose stop transfer instructions with respect to the shares (or other
securities) subject to the foregoing restriction until the end of such
period.
4. Escrow; Escrow Instructions. As security for Purchaser's faithful
performance of the terms and provisions of this Agreement, and to
insure the availability for delivery of the Shares upon the Company's
(or its assignee's) exercise of the Right of First Refusal, or
Involuntary Transfer Option, Purchaser shall, at the Closing Date,
deliver and deposit with _________________ or such other person
designated by the Company
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as Escrow Agent in this transaction, the share certificate(s)
representing the Shares, together with a stock assignment duly
endorsed in blank (in the form of Exhibit A to this Agreement). The
Escrow Agent is hereby authorized and directed to hold the documents
delivered to the Escrow Agent pursuant to the terms of this Agreement,
including the stock certificate(s), evidencing the Shares and the
stock assignment in accordance with the following terms of this
Section 4.
4.1 Rights Exercise. In the event the Company (or its
assignee) shall elect to exercise the Right of First Refusal, or
Involuntary Transfer Option set forth in Section 3 of this Agreement
(collectively the "Rights") in whole or in part, the Company (or its
assignee) shall give to Purchaser and to Escrow Agent a written notice
specifying a time, place, and/or manner for a closing hereunder.
4.2 Closing Instructions. Purchaser and the Company hereby
irrevocably authorize and direct Escrow Agent to take all such actions
as may be necessary or proper to close the transaction contemplated by
such notice in accordance with the terms of such notice. At the
closing, Escrow Agent is directed to
(a) date such stock assignment as shall be necessary
for the specific transfer,
(b) fill in the number of Shares being transferred,
and
(c) deliver the same, together with the
certificate(s) evidencing the Shares to be transferred, to the
Company (or its assignee) as provided in this Agreement
against the simultaneous delivery to Escrow Agent of the
purchase price for the number of Shares being purchased
pursuant to this Agreement.
4.3 Additional Share Deposit. Purchaser irrevocably authorizes
the Company to deposit with Escrow Agent any securities (including
additional shares of the Company's Common Stock) or other property
(including cash) which Purchaser would be entitled to receive on
account of any Shares held by Escrow Agent hereunder. To facilitate the
performance of this Agreement, Purchaser irrevocably constitutes and
appoints Escrow Agent as his attorney-in-fact and agent for the term of
the escrow to execute with respect to such Shares all stock
certificates, stock assignments, or other instruments, which shall be
necessary or appropriate to make such securities negotiable and to
complete any transaction contemplated under this Agreement, including
but not limited to any filings to comply with state or federal
securities laws.
4.4 Share Release. Upon written request from the Company and
Purchaser, Escrow Agent is authorized to release from escrow the number
of Shares indicted in that written request pursuant to this Agreement.
4.5 Escrow Termination. The escrow shall terminate upon the
termination of the Company's Rights under Section 3 of this Agreement.
Upon termination of this escrow, Escrow Agent shall deliver to
Purchaser all documents, securities, or other property belonging to
Purchaser that are still in Escrow Agent's possession, and Escrow Agent
shall be discharged of all further obligations under Section 4.
4.6 Escrow Amendment. Escrow Agent's duties hereunder may be
altered, amended, modified, or revoked only by a writing signed by all
of the parties to this Agreement and approved by Escrow Agent.
4.7 Escrow Agent Liability. Escrow Agent shall not be
personally liable for any act Escrow Agent may do or omit to do
hereunder as Escrow Agent or attorney-in-fact for Purchaser while
acting in good faith and in the exercise of Escrow Agent's own good
judgement and any act done or omitted by Escrow Agent pursuant to the
advice of Escrow Agent's own attorneys shall be conclusive evidence of
such good faith. Escrow Agent shall not be liable in any respect on
account of the identities, authorities, or rights of the parties
executing or delivering or purporting to execute or deliver this
Agreement or any documents or papers deposited or called for hereunder.
Escrow Agent shall not be liable for the termination of any rights
under any applicable statute of limitations with respect to the
provisions of this Section 4 or any documents deposited with Escrow
Agent.
4.8 Court Orders. Escrow Agent is hereby expressly authorized
to disregard any and all warnings given by any of the parties hereto or
by any other person or corporation, excepting only orders or process of
courts of law, and is hereby expressly authorized to comply with and
obey orders, judgements, or decrees of any court. In case Escrow Agent
obeys or complies with any such order,
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judgement, or decree of any court, Escrow Agent shall not be liable to
any of the parties hereto or to any other person, firm, or corporation
by reason of such compliance, notwithstanding that any such order,
judgement, or decree shall be subsequently reversed, modified,
annulled, set aside, vacated, or found to have been entered without
jurisdiction.
4.9 Execution Effect. By signing this Agreement, the Escrow
Agent becomes a party hereto only for the purpose of Section 4. and
for no other provisions of this Agreement.
4.10 Escrow Agent Successors. If, prior to the termination of
this Escrow, ____________ shall die or shall cease to be Escrow Agent
of the Company, any other officer of the Company may, from time to
time, at the request of the Company's Board of Directors, discharge any
of the duties and perform any of the acts to be performed by
__________________ as Escrow Agent.
5. Investment Representations. In connection with the
acquisition of the Shares, Purchaser represents to the Company the
following:
5.1 Investment. Purchaser is acquiring the Shares to be issued
to Purchaser for investment for Purchaser's own account and not with
the view to, or for resale in connection with, any distribution,
assignment, or resale within the meaning of the Securities Act of 1933
(the "Securities Act"), or the Delaware Corporate Securities Law, as
amended ("Delaware Securities Law") to others and no other person has a
direct or indirect beneficial interest, in whole or in part, in such
Shares. Purchaser understands that the Shares to be issued to Purchaser
have not been and will not be registered under the Securities Act or
qualified under the Delaware Securities Law, or under the laws of any
other state of the United States in reliance upon specific exemptions
therefrom which depend upon, among other things, the bona fide nature
of the investment intent as expressed herein, and in any other
representations, warranties, or information provided by Purchaser to
the Company under this Agreement.
5.2 Restrictions on Transfer. Purchaser acknowledges that the
Shares to be issued to Purchaser must be held indefinitely unless
subsequently registered and qualified under the Securities Act, or
unless an exemption from registration and qualification is otherwise
available. Purchaser further understands that the Company is under no
obligation to register or qualify the Shares.
5.3 Rule 144. Purchaser is aware of the provisions of Rule
144, promulgated under the Securities Act, which permits limited public
resale of "restricted securities" acquired, directly or indirectly,
from the issuer thereof (or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions.
5.4 Exemption from Registration. Purchaser further
acknowledges that, in the event all of the applicable requirements of
Rule 144 are not satisfied, registration under the Securities Act,
compliance with Regulation A, or some other registration exemption will
be required.
5.5 Relationship to Company; Experience. Purchaser either has
a preexisting business or personal relationship with the Company or any
of its officers, directors, or controlling persons or, by reason of
Purchaser's business or financial experience, has the capacity to
protect Purchaser's own interests in connection with Purchaser's
acquisition of the Shares to be issued to Purchaser hereunder.
Purchaser has such knowledge and experience in financial, tax, and
business matters to enable Purchaser to utilize the information made
available to Purchaser in connection with the acquisition of the Shares
to evaluate the merits and risks of the prospective investment and to
make an informed investment decision with respect thereto.
5.6 Purchaser's Liquidity. In reaching the decision to invest
in the Shares, Purchaser has carefully evaluated Purchaser's financial
resources and investment position and the risks associated with this
investment, and Purchaser acknowledges that Purchaser is able to bear
the economic risks of the investment. Purchaser
(a) has adequate means of providing for
Purchaser's current needs and possible personal contingencies,
(b) has no need for liquidity in Purchaser's
investment,
(c) is able to bear the substantial economic
risks of an investment in the Shares for an indefinite period,
and
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(d) at the present time, can afford a complete loss
of such investment. Purchaser's commitment to investments
which are not readily marketable is not disproportionate to
Purchaser's net worth, and Purchasers investment in the Shares
will not cause Purchaser's overall commitment to become
excessive.
5.7 Offer and Sale. Purchaser understands that the offer and
sale of the Shares have not been registered under the Securities Act in
reliance upon exemption therefrom. Purchaser was not offered or sold
the Shares, directly or indirectly, by means of any form of general
solicitation or general advertisement, including the following:
(a) any advertisement, article, notice, or other
communication published in any newspaper, magazine, or
similar medium, or broadcast over television or radio; or
(b) any seminar or meeting whose attendees had been
invited by general solicitation or general advertising.
5.8 Access to Data. Purchaser 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 Shares. Purchaser acknowledges that during the
course of this transaction and before deciding to acquire the Shares,
Purchaser has been provided with financial and other written
information about the Company. Purchaser has been given the opportunity
by the Company to obtain any information and ask questions concerning
the Company, the Shares, and Purchaser's investment that Purchaser felt
necessary; and to the extent Purchaser availed himself of that
opportunity, Purchaser has received satisfactory information and
answers.
5.9 Risks. Purchaser acknowledges and understands that
(a) any investment in the Company constitutes a high
risk,
(b) the Shares are highly speculative, and
(c) there can be no assurance as to what return, if
any, there may be.
Purchaser is aware that the Company may issue
additional securities in the future which could result in the dilution
of Purchaser's ownership interest in the Company.
5.10 Valid Agreement. This Agreement, when executed and
delivered by Purchaser, shall constitute a valid and legally binding
obligation of Purchaser which is enforceable in accordance with its
terms.
5.11 Residence. The address set forth on the signature page of
this Agreement is Purchaser's current address and accurately sets forth
Purchaser's place of residence.
6. Securities Compliance.
6.1 Legends. The certificate or certificates representing the
Shares shall bear legends in substantially the following form (in
addition to any other legend imposed by applicable blue sky laws or the
Articles or Bylaws of the Company):
(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 FOR THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1993.
(b) THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO TRANSFER RESTRICTIONS IN ACCORDANCE
WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
(c) THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
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EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR
RULE 701 UNDER SUCH ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
6.2 No Qualification. THE SALE OF THE SECURITIES WHICH ARE THE
SUBJECT OF THIS AGREEMENT, IF NOT YET QUALIFIED WITH THE DELAWARE
CORPORATION COMMISSIONER, IS SUBJECT TO SUCH QUALIFICATION OR AN
EXEMPTION BEING AVAILABLE, AND THE ISSUANCE OF SUCH SECURITIES, OR THE
RECEIPT OF ANY PART OF THE CONSIDERATION PRIOR TO SUCH QUALIFICATION IS
UNLAWFUL. THE RIGHTS OF THE PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION
BEING AVAILABLE.
6.3 Transfers. In addition to the restrictions imposed under
Section 3, all transfers of Shares or any interest in any such Shares
shall be made in strict compliance with applicable state and federal
securities laws and the Articles and Bylaws of the Company.
7. Tax Considerations. Purchaser understands that the tax consequences
to the Purchaser as a result of this transaction depend on Purchaser's
individual circumstances and the characterization of this transaction.
Further, Purchaser will be responsible for any personal tax liability,
whether federal, state, or local, as a result of this transaction and
Purchaser's ownership of the Shares. Purchaser has consulted with
Purchaser's own advisor(s) with respect to this transaction and has not
relied on any advice from the Company or any of its officers,
directors, agents, or representations.
8. Miscellaneous.
8.1 Amendment. This Agreement may only be amended by written
agreement between Company and Purchaser (or, with respect to Section 4,
by written agreement among the Company, Purchaser, and the Escrow
Agent).
8.2 Notices. Any notice, demand, request, or other
communications hereunder shall be deemed sufficient when delivered
personally or sent by courier or upon deposit in the United State mail,
as certified, registered, or first class mail, with postage prepaid,
and addressed, if to the Company, at it principal place of business,
Attention: the President, if to Purchaser, at his address as shown on
the stock records of the Company, or if to Escrow Agent, at
________________________. The address to which notice is to be given
hereunder may be changed from time to time by the parties entitled to
notice by notice given to all other parties as provided herein.
8.3 Successors and Assigns. The rights and benefits of this
Agreement shall inure to the benefit of, and be enforceable by, the
Company's successors and assigns. The rights and obligations of
Purchaser under this Agreement may only be assigned with the prior
written consent of the Company.
8.4 Further Actions. Both parties agree to execute any
additional documents and take such further action as may be reasonably
necessary to carry out the purposes of this Agreement.
8.5 Shareholder Rights. Subject to the provisions of this
Agreement, Purchaser shall, during this term of this Agreement,
exercise all rights and privileges of a shareholder of the Company
with respect to the shares.
8.6 Injunctive Relief. Purchaser agrees that the Company
and/or other shareholders shall be entitled to a decree of specific
performance of the terms hereof or an injunction restraining violations
of this Agreement, such right to be in addition to any of the remedies
of the Company. No remedy provided herein is intended to be exclusive
of any other remedy, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder, or now or
hereafter existing at law or in equity.
8.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, other
than the conflict of laws and except for matters of corporate
governance which shall be governed by and construed according to the
laws of the State of Delaware.
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8.8 Severability. 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 continue in
full force and effect without being impaired or invalidated in any way
and shall be construed in accordance with the purposes, tenor, and
effect of this Agreement.
8.9 No Employment Effect. Nothing contained herein shall
confer upon Purchaser any right to continue in the employ of, or
consulting relationship with, the Company, and the Company reserves all
rights to discharge Purchaser for any reason whatsoever, with or
without cause.
8.10 Expenses. Each party hereto shall pay his own expenses
incurred (including, with limitation, the fees of counsel) on his
behalf in connection with this Agreement or any transactions
contemplated by this Agreement.
8.11 Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the
subject matter hereof and supersedes all prior and contemporaneous
written or oral communications or agreements between the Company and
Purchaser regarding the subject matter hereof, and no amendment or
addition hereto shall be deemed effective unless agreed to, in writing,
by the parties hereto.
8.12 Waivers. No waiver of any provision of this Agreement or
any rights or obligations of any party hereunder shall be effective,
except pursuant to a written instrument signed by the party or parties
waiving compliance, and any such waiver shall be effective only in the
specific instance and for the specific purpose stated in such writing.
8.13 Counterparts. This Agreement may be executed in one or
more counterparts each of which shall be an original and all of which
together shall constitute one and the same instrument.
8.14 Attorneys' Fees. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this Agreement,
or because of an alleged dispute, breach, default, or misrepresentation
in connection with any provision of this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys'
fees and other costs incurred in that action or proceeding, in addition
to any other relief to which it may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
CHAPARRAL NETWORK STORAGE, INC. PURCHASER
--------------------------------------- ---------------------------
Xxxx X.. Xxxxxxx, Chairman & CEO Purchaser
0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000 City, State, Zip
For purposes of Section 4 only:
Escrow Agent
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SPOUSE'S CONSENT
I acknowledge that I have read the foregoing Common Stock Purchase
Agreement and that I know its content. I am aware that by its provisions my
spouse agrees to sell all his or her shares, including any community property
interest I may have, on the occurrence of certain events. I hereby consent to
the sale, approve the provisions of the Agreement, and agree that these Shares
and any interest I may have in them are subject to the provisions of the Common
Stock Purchase Agreement and that I will take no action at any time to hinder
the operation of the Common Stock Purchase Agreement on these Shares or any
interest I may have in them.
Spouse of Purchaser
Signature Date
--------------------------------- ----------------------------
Spouse
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED ____________ hereby sells, assigns, and transfers unto
CHAPARRAL NETWORK STORAGE, INC. (__________) shares of the Common Stock (the
"Shares") of CHAPARRAL NETWORK STORAGE, INC., a Delaware corporation (the
"Company"), standing in the undersigned's name on the books of the Company
represented by Certificate No. ________ herewith, and does hereby irrevocably
constitute and appoint __________________________________________ attorney to
transfer such Shares on the books of the Company with full power of substitution
in the premises.
Signature Date
----------------------------------- --------------------------
Purchaser
THIS ASSIGNMENT MAY ONLY BE USED IN CONNECTION WITH THE RIGHTS OF THE COMPANY
UNDER A COMMON STOCK PURCHASE AGREEMENT WITH THE SIGNATORY OF THIS ASSIGNMENT.
CONFIDENTIAL Page 9 of 10
10
STOCK CERTIFICATE AND ESCROW RECEIPT
The undersigned Purchaser acknowledges receipt of a copy of Certificate
No. ____ for ___________ shares of Common Stock of CHAPARRAL NETWORK STORAGE,
INC.
The undersigned understands that the original of the stock certificate
has been deposited into escrow in accordance with Section 4 of the Common Stock
Purchase Agreement, and is being held by the Escrow Agent at the principal
offices of CHAPARRAL NETWORK STORAGE, INC.
The undersigned acknowledges that the certificate contains legends
restricting transfer as specified in Section 6 of the Common Stock Purchase
Agreement.
Signature Date
-------------------------------- ------------------------------
Purchaser
CONFIDENTIAL Page 10 of 10
