EXHIBIT 10.28
SEABRIGHT INSURANCE HOLDINGS, INC.
EXECUTIVE STOCK AGREEMENT
THIS AGREEMENT is made as of September 30, 2003, between SeaBright
Insurance Holdings, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxxxxxx ("Executive").
The Company and Executive desire to enter into an agreement pursuant
to which Executive shall purchase, and the Company shall sell, 500 shares of the
Company's Convertible Preferred Stock, par value $.01 per share (the "Executive
Stock"). Certain definitions are set forth in paragraph 4 of this Agreement.
The parties hereto agree as follows:
1. Purchase and Sale of Executive Stock.
(a) Upon the execution and delivery of this Agreement, Executive
shall purchase, and the Company shall sell, 500 shares of Executive Stock at a
price of $100.00 per share. The Company shall deliver to Executive the
certificates representing such shares of Executive Stock, and Executive shall
deliver to the Company a wire transfer of funds in the aggregate amount of
$50,000.
(b) In connection with the purchase and sale of the Executive Stock
hereunder, Executive represents and warrants to the Company that:
(i) The Executive Stock to be acquired by Executive pursuant
to this Agreement shall be acquired for Executive's own account and not
with a view to, or intention of, distribution thereof in violation of the
1933 Act, or any applicable state securities laws, and the Executive Stock
shall not be disposed of in contravention of the 1933 Act or any
applicable state securities laws.
(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Executive Stock.
(iii) Executive is able to bear the economic risk of his
investment in the Executive Stock for an indefinite period of time because
the Executive Stock has not been registered under the 1933 Act and,
therefore, cannot be sold unless subsequently registered under the 1933
Act or an exemption from such registration is available.
(iv) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Executive Stock and has had full access to such other information
concerning the Company as he has requested. Executive has reviewed, or has
had an opportunity to review the following documents
(and Executive is familiar with the transactions contemplated thereby):
(A) a copy of the Purchase Agreement, dated June 14, 2003, between the
Company and the Sellers and other parties named therein, and (B) the
Company's Certificate of Incorporation and Bylaws.
(v) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive do not
and shall not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Executive is a party or any judgment,
order or decree to which Executive is subject.
(vi) Executive has not taken any action that constitutes a
conflict with, violation or breach of, and the execution and delivery of
this Agreement and the other agreements contemplated hereby will not
conflict with, violate or cause a breach of, any noncompete,
nonsolicitation or confidentiality agreement to which Executive is a party
or by which Executive is bound. Executive agrees to notify the Board of
any matter (including, but not limited to, any potential acquisition by
the Company) which, to Executive's knowledge, might reasonably be expected
to violate or cause a breach of any such agreement.
(vii) Executive is a resident of the State of Washington and
is an "accredited investor" as defined in Rule 501(a) under the 1933 Act.
(c) As an inducement to the Company to issue the Executive Stock to
Executive, as a condition thereto, Executive acknowledges and agrees that:
(i) neither the issuance of the Executive Stock to Executive
nor any provision contained herein shall entitle Executive to remain in
the employment of the Company and its Subsidiaries or affect the right of
the Company to terminate Executive's employment at any time; and
(ii) the Company shall have no duty or obligation to disclose
to Executive, and Executive shall have no right to be advised of, any
material information regarding the Company and its Subsidiaries at any
time prior to, upon or in connection with the repurchase of Executive
Stock upon the termination of Executive's employment with the Company and
its Subsidiaries or as otherwise provided hereunder.
2. Repurchase Option.
(a) In the event that Executive ceases to be employed by the Company
and its Subsidiaries for any reason (the "Termination"), the Executive Stock
(whether held by Executive or one or more of Executive's transferees) shall be
subject to repurchase by the Company and the Investors pursuant to the terms and
conditions set forth in this paragraph 2 (the "Repurchase Option").
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(b) In the event the Repurchase Option is exercised, the purchase
price for each share of Executive Stock shall be the Fair Market Value thereof
as of the date of Termination.
(c) The Company (or its designee(s)) may elect to purchase all or
any portion of the Executive Stock by delivering written notice (the "Repurchase
Notice") to the holder or holders of the Executive Stock within 90 days after
the Termination. The Repurchase Notice shall set forth the number and type of
shares of Executive Stock to be acquired from each holder of Executive Stock,
the aggregate consideration to be paid for such shares and the time and place
for the closing of the transaction. The number of shares to be repurchased by
the Company shall first be satisfied to the extent possible from the shares of
Executive Stock held by Executive at the time of delivery of the Repurchase
Notice. If the number of shares of Executive Stock then held by Executive is
less than the total number of shares of Executive Stock the Company has elected
to purchase, the Company shall purchase the remaining shares elected to be
purchased from the other holder(s) of Executive Stock under this Agreement, pro
rata according to the number of shares of Executive Stock held by such other
holder(s) at the time of delivery of such Repurchase Notice (determined as close
as practicable to the nearest whole shares). The number of shares of Executive
Stock to be repurchased hereunder shall be allocated among Executive and the
other holders of Executive Stock (if any) pro rata according to the number of
shares of Executive Stock to be purchased from such persons.
(d) If for any reason the Company does not elect to purchase all of
the Executive Stock pursuant to the Repurchase Option, the Investors shall be
entitled to exercise the Repurchase Option for the shares of Executive Stock the
Company has not elected to purchase (the "Available Shares"). As soon as
practicable after the Company has determined that there will be Available
Shares, but in any event within 45 days after the Termination, the Company shall
give written notice (the "Option Notice") to the Investors setting forth the
number of Available Shares and the purchase price for the Available Shares. The
Investors may elect to purchase any or all of the Available Shares by giving
written notice to the Company within 30 days after the Option Notice has been
given by the Company. If more than one Investor elects to purchase the Executive
Stock, the shares of Executive Stock shall be allocated among the Investors pro
rata according to the number of shares of Convertible Preferred Stock owned by
each Investor on a fully-diluted basis (assuming conversion of the Company's
Convertible Preferred Stock). As soon as practicable, and in any event within
five days after the expiration of the 30-day period set forth above, the Company
shall notify each holder of Executive Stock as to the number and type of shares
being purchased from such holder by the Investors (the "Supplemental Repurchase
Notice").
(e) The closing of the purchase of the Executive Stock pursuant to
the Repurchase Option shall take place on the date designated by the Company in
the Repurchase Notice or Supplemental Repurchase Notice, as the case may be,
which date shall not be more than 60 days nor less than five days after the
delivery of the later of either such notice to be delivered. The Company and/or
the Investors shall pay for the Executive Stock to be purchased pursuant to the
Repurchase Option by delivery of, in the case of each Investor, a check or wire
transfer of funds. The purchasers of Executive Stock hereunder shall be entitled
to receive customary representations and warranties from the sellers regarding
such sale of shares
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(including representations and warranties regarding good title to such shares,
free and clear of any liens or encumbrances).
(f) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Executive Stock by the Company shall be subject to
applicable restrictions contained in the Delaware General Corporation Law and in
the Company's and its Subsidiaries debt and equity financing agreements. If any
such restrictions prohibit the repurchase of Executive Stock hereunder which the
Company is otherwise entitled to make, the time periods provided in this
paragraph 2 shall be suspended, and the Company may make such repurchases as
soon as it is permitted to do so under such restrictions.
(g) The right of the Company and the Investors to repurchase
Executive Stock hereunder shall terminate upon the first to occur of a Sale of
the Company or an IPO (as each such term is defined in that certain Stockholders
Agreement, dated as of the date hereof, by and among the Company and the
Stockholders (including Executive) named therein, as the same may be amended or
modified from time to time in accordance with its terms).
3. Additional Restrictions on Transfer.
(a) Legend. The certificates representing the Executive Stock shall
bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
SEPTEMBER 30, 2003, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER,
CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN
EXECUTIVE STOCK AGREEMENT BETWEEN THE COMPANY AND XXXXXXX X. XXXXXXXXX
DATED AS OF SEPTEMBER 30, 2003, AS AMENDED AND MODIFIED FROM TIME TO TIME.
A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) Opinion of Counsel. No holder of Executive Stock may sell,
transfer or dispose of any Executive Stock (except pursuant to an effective
registration statement under the 1933 Act) without first delivering to the
Company an opinion of counsel (reasonably acceptable in form and substance to
the Company) that neither registration nor qualification under the 1933 Act and
applicable state securities laws is required in connection with such transfer.
(c) Holdback. Each holder of Executive Stock agrees not to effect
any public sale or distribution of any Executive Stock or other equity
securities of the Company, or any
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securities convertible into or exchangeable or exercisable for any of the
Company's equity securities, during the seven days prior to and the 180 days
after the effectiveness of any underwritten public offering, except as part of
such underwritten public offering or if otherwise permitted by the Company.
4. Definitions.
"1933 Act" means the Securities Act of 1933, as amended from time to
time.
"Board" means the Company's Board of Directors.
"Cause" shall have the meaning given to such term in that certain
Employment Agreement, dated as of the date hereof, by and between the Company
and Executive (as the same may be modified or amended from time to time in
accordance with its terms).
"Executive Stock" shall continue to be Executive Stock in the hands
of any holder other than Executive (except for the Company and the Investors and
except for transferees in a Public Sale), and except as otherwise provided
herein, each such other holder of Executive Stock shall succeed to all rights
and obligations attributable to Executive as a holder of Executive Stock
hereunder. Executive Stock shall also include shares of the Company's capital
stock issued with respect to Executive Stock by way of a stock split, stock
dividend or other recapitalization.
"Fair Market Value" of each share of Executive Stock means the fair
value thereof as determined in good faith by the Board.
"Investors" means Summit Ventures V, L.P., Summit V Companion Fund,
L.P., Summit V Advisors Fund (QP), L.P., Summit V Advisors Fund, L.P., Summit
Ventures VI-A, L.P., Summit Ventures VI-B, L.P., Summit VI Advisors Fund, L.P.,
Summit VI Entrepreneurs Fund, L.P. and Summit Investors VI, L.P., and their
respective successors and assigns.
"Public Sale" means any sale pursuant to a registered public
offering under the 1933 Act or any sale to the public pursuant to Rule 144
promulgated under the 1933 Act effected through a broker, dealer or market
maker.
"Sellers" means Xxxxxx Employers Group, Inc., a Washington
corporation, Lumbermens Mutual Casualty Company, an Illinois domiciled mutual
insurance company, Eagle Pacific Insurance Company, a Washington domiciled
insurance company, and Pacific Eagle Insurance Company, a California domiciled
insurance company.
"Subsidiary" means any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
5. Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
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To the Company:
SeaBright Insurance Holdings, Inc.
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: 000-000-0000
with copies to:
Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
J. Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxx, P.C.
Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
To Executive:
Xx. Xxxxxxx X. Xxxxxxxxx
0000 000xx Xxx XX
Xxxxxxxx, XX 00000
To the Investors:
c/o Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
J. Xxxxx Xxxxxx
Telecopy: (000) 000-0000
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with copies to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxx, P.C.
Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
6. General Provisions.
(a) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Executive Stock in violation of any provision of this Agreement
shall be void, and the Company shall not record such Transfer on its books or
treat any purported transferee of such Executive Stock as the owner of such
stock for any purpose.
(b) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties with respect to the subject matter
hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(d) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Investors and their respective successors and
assigns (including subsequent holders of Executive Stock); provided that the
rights and obligations of Executive under this Agreement shall not be assignable
without the prior written consent of the Company and the Investors owning a
majority of the Company's Convertible Preferred Stock owned by all of the
Investors.
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(f) Choice of Law. The corporate law of the State of Delaware shall
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits hereto shall
be governed by, and construed in accordance with, the internal law, and not the
law of conflicts, of the State of Delaware, without giving effect to any choice
of law or conflict of law rules or provisions (whether of the State of Delaware
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(g) Remedies. Each of the parties to this Agreement (including the
Investors) shall be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including reasonable attorney's
fees) caused by any breach of any provision of this Agreement and to exercise
all other rights existing in its favor. The parties hereto agree and acknowledge
that money damages would not be an adequate remedy for any breach of the
provisions of this Agreement and that any party shall be entitled to specific
performance and/or other injunctive relief from any court of law or equity of
competent jurisdiction (without posting any bond or deposit) in order to enforce
or prevent any violations of the provisions of this Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company, Executive
and the Investors owning a majority of the Company's Convertible Preferred Stock
owned by all of the Investors.
(i) Third-Party Beneficiaries. Certain provisions of this Agreement
are entered into for the benefit of and shall be enforceable by the Investors as
provided herein to the same extent as if the Investors were parties hereto.
(j) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief executive office is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or holiday.
(k) Deemed Purchase of Executive Stock. If the Company or any other
Person has elected to acquire shares of Executive Stock as provided in this
Agreement, and the Company and/or such Person (as applicable) shall make
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Executive Stock to be purchased in
accordance with the provisions of this Agreement, then from and after such time,
the Person from whom such securities are to be purchased shall no longer have
any rights as a holder of such securities (other than the right to receive
payment of such consideration in accordance with this Agreement), and such
securities shall be deemed purchased in accordance with the applicable
provisions hereof and the Company (and/or any other Person acquiring securities)
shall be deemed the owner and holder of such securities, whether or not the
certificates therefor have been delivered as required by this Agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first written above.
SEABRIGHT INSURANCE HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------
Its President
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx
CONSENT
The undersigned spouse of Executive hereby acknowledges that I have
read the foregoing Executive Stock Agreement and that I understand its contents.
I am aware that the Agreement provides for the repurchase of my spouse's shares
of Convertible Preferred Stock under certain circumstances and imposes other
restrictions on the transfer of such Convertible Preferred Stock. I agree that
my spouse's interest in the Convertible Preferred Stock is subject to this
Agreement and any interest I may have in such Convertible Preferred Stock shall
be irrevocably bound by this Agreement and further that the my community
property interest, if any, shall be similarly bound by this Agreement.
I am aware that the legal, financial and other matters contained in
this Agreement are complex and I am free to seek advice with respect thereto
from independent counsel. I have either sought such advice or determined after
carefully reviewing this Agreement that I will waive such right.
______________________________________
Name of Spouse
______________________________________
Witness
