Service Provider
Stock Purchase Agreement (Restricted Stock)
This Stock Purchase Agreement (the “Agreement”) is made as of
by and between (the “Company”), and
(the “Service Provider”);
RECITALS:
A. Service Provider is an employee, consultant, advisor, officer or director of the
Company; and
B. The Company desires to issue shares of its Common Stock to Service Provider on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, warranties and
representations contained herein, the parties hereby agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions of this
Agreement, the Company agrees to sell to Service Provider and Service Provider agrees to
purchase from the Company, at the Closing (as that term is defined below),
shares of the Company’s Common Stock (the “Shares”), at a price of $ per share (the
“Purchase Price”).
As additional consideration for the Company’s agreement to sell the Shares, Service
Provider hereby transfers and assigns to the Company any and all right, title and interest Service
Provider has in the Company’s business plans and any Intellectual Property (as that term is
defined below) related to the Company’s business, as currently conducted and as contemplated to
be conducted. As used herein, the term “Intellectual Property” shall mean: (i) United States and
foreign patents, trademarks, copyrights and mask works, registrations and applications therefor,
and rights granted upon any reissue, division, continuation or continuation-in-part thereof,
(ii) trade secret rights arising out of the laws of any and all jurisdictions, (iii) ideas, inventions,
concepts, technology, software, methods, processes, drawings, illustrations, writings know-how,
show-how, trade names, domain names, web addresses and web sites, and all rights therein and
thereto, (iv) any other intellectual property rights, whether or not registrable, and (v) licenses in
or to any of the foregoing.
2. Closing. The purchase and sale of the Shares shall occur at a closing (the
“Closing”) to be held on the date first set forth above, or at any other time mutually agreed upon
by the Company and Service Provider. The Closing will take place at the principal office of the
Company or at such other place as shall be designated by the Company. At the Closing, Service
Provider shall deliver the aggregate Purchase Price set forth above to the Company by wire
transfer, check or any other method of payment permissible under applicable law and approved
by the Company’s Board of Directors (or any combination of such methods of payment), and the
Company will issue, as promptly thereafter as practicable, a stock certificate, registered in the
name of Service Provider, reflecting the Shares.
3. Repurchase Option.
A. Option. In the event Service Provider ceases to be an employee,
consultant, advisor, officer or director of the Company for any or no reason, including, without
limitation, by reason of death or disability (“Disability”), resignation or involuntary termination,
the Company shall, from such time (as determined by the Company in its discretion), have the
right, but not the obligation (the “Repurchase Option”), for a period of 60 days from the date
Service Provider ceases to be a service provider, to repurchase any Shares which have not yet
been released from the Repurchase Option (the “Unreleased Shares”) at a price per share equal to
the lesser of (x) the fair market value of the shares at the time the Repurchase Option is
exercised, as determined by the Company’s board of directors and (y) the Purchase Price (the
“Repurchase Price”). The Repurchase Option shall be exercised by the Company by delivering
written notice to Service Provider or, in the event of Service Provider’s death, Service Provider’s
executor and, at the Company’s option, (i) by delivering to Service Provider or Service
Provider’s executor a check in the amount of the aggregate Repurchase Price, (ii) by canceling
an amount of Service Provider’s indebtedness to the Company equal to the aggregate Repurchase
Price, or (iii) by a combination of (i) and (ii) such that the combined payment and cancellation of
indebtedness equals the aggregate Repurchase Price. Upon delivery of such notice and the
payment of the aggregate Repurchase Price, the Company shall become the legal and beneficial
owner of the Unreleased Shares being repurchased and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its own name the number
of Unreleased Shares being repurchased by the Company.
B. Assignability. The Company in its sole discretion may assign all or part of
the Repurchase Option to one or more employees, officers, directors or shareholders of the
Company or other persons or organizations.
4. Release of Shares from Repurchase Option; Vesting.
A. Vesting. So long as Service Provider’s continuous status as a Service
Provider has not yet terminated in each such instance, 1/48th of the total number of Shares shall
be released from the Repurchase Option on the corresponding day of each month after [insert
date] (the “Vesting Commencement Date”) (or if there is no corresponding day in any such
month, on the last day of such month), until all Shares have been released on the fourth
anniversary of the Vesting Commencement Date.
B. Acceleration upon a Change of Control. In the event of a Change of
Control (as defined below), 100% of the total number of Shares that have not been released from
the Repurchase Option shall be immediately released from the Repurchase Option, provided that
Service Provider’s continuous status as a Service Provider has not been terminated prior to such
time. As used herein, the term “Change in Control” shall mean either:
(1) the acquisition of the Company by another entity by means of any
transaction or series of related transactions (including, without limitation, any reorganization,
-2-
merger or consolidation or stock transfer, but excluding any such transaction effected primarily
for the purpose of changing the domicile of the Company), unless the Company’s shareholders
of record immediately prior to such transaction or series of related transactions hold,
immediately after such transaction or series of related transactions, at least 50% of the voting
power of the surviving or acquiring entity (provided that the sale by the Company of its
securities for the purposes of raising additional funds shall not constitute a Change of Control
hereunder); or
(2) a sale of all or substantially all of the assets of the Company.
5. Parachute Payments.
A. Limitation. In the event that the severance and other benefits provided for
in this Agreement or otherwise payable to Service Provider (i) constitute “parachute payments”
within the meaning of Section 280G of the Code, and (ii) would be subject to the excise tax
imposed by Section 4999 of the Code (the “Excise Tax”), then Service Provider’s benefits under
this Agreement shall be either
(1) delivered in full, or
(2) delivered as to such lesser extent which would result in no portion
of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal, state and local
income taxes and the Excise Tax, results in the receipt by Service Provider on an after-tax basis,
of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may
be taxable under Section 4999 of the Code. Any reduction in payments and/or benefits required
by this Section 5 will occur in the following order: (1) reduction of cash payments; (2) reduction
of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to
Service Provider. In the event that acceleration of vesting of equity awards is to be reduced, such
acceleration of vesting will be cancelled in the reverse order of the date of grant for Service
Provider’s equity awards. If two or more equity awards are granted on the same date, each award
will be reduced on a pro-rata basis. In no event will Service Provider exercise any discretion with
respect to the ordering of any reductions of payments or benefits under this Section 5.
B. Determination. Unless the Company and Service Provider otherwise agree
in writing, any determination required under this Section 5 shall be made in writing by the
Company’s independent public accountants (the “Accountants”), whose determination shall be
conclusive and binding upon Service Provider and the Company for all purposes. The Company
and Service Provider shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this Section 5. The
Company shall bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 5.
6. Restrictions on Transfer.
A. Investment Representations and Legend Requirements. Service Provider
hereby makes the investment representations on Exhibit A to the Company as of the date of this
-3-
Agreement and as of the dat