EXHIBIT 10.13
LAMINATES ACQUISITION CO. 1999
STOCK PLAN:
STOCK PURCHASE AGREEMENT
SECTION 1. ACQUISITION OF SHARES.
(a) Transfer. On the terms and conditions set forth in the Summary of
Stock Purchase and this Agreement, the Corporation agrees to transfer
to the Purchaser the number of Shares set forth in the Summary of
Stock Purchase. The transfer shall occur at the offices of the
Corporation on the date of purchase set forth in the Summary of Stock
Purchase or at such other place and time as the parties may agree.
(b) Consideration. The Purchaser agrees to pay the Purchase Price set
forth in the Summary of Stock Purchase for each Purchased Share. The
Purchase Price is agreed to be at least 100% of the Fair Market Value
of the Purchased Shares. Payment shall be made on the transfer date
in cash or cash equivalents.
(c) Stock Plan and Defined Terms. The transfer of the Purchased Shares is
subject to the Plan, a copy of which the Purchaser acknowledges
having received. The provisions of the Plan are incorporated into
this Agreement by this reference. Capitalized terms are defined in
Section 12 of this Agreement.
SECTION 2. RIGHT OF REPURCHASE FOR PURCHASED SHARES.
(a) Scope of Repurchase Right. All Purchased Shares shall be subject to a
right (but not an obligation) of repurchase by the Corporation. The
Purchaser shall not transfer, assign, encumber or otherwise dispose
of any Purchased Shares, except as provided in the following
sentence. The Purchaser may transfer Purchased Shares (i) by
beneficiary designation, will or intestate succession or (ii) to the
Purchaser's spouse, children or grandchildren or to a trust
established by the Purchaser for the benefit of the Purchaser or the
Purchaser's spouse, children or grandchildren, provided in either
case that the Transferee agrees in writing on a form prescribed by
the Corporation to be bound by all provisions of this Agreement. If
the Purchaser transfers any Purchased Shares, then this Section 2
shall apply to the Transferee to the same extent as the Purchaser.
(b) Condition Precedent to Exercise. The Right of Repurchase for
Purchased Shares shall be exercisable at any time following the date
when
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the Purchaser's Service terminates for any reason, with or
without cause, including (without limitation) death or disability.
(c) Repurchase Cost. If the Corporation exercises the Right of Repurchase
for Purchased Shares, it shall pay the Purchaser an amount equal to
the Fair Market Value for each of the Purchased Shares being
repurchased.
(d) Exercise of Repurchase Right. The Right of Repurchase for Purchased
Shares shall be exercisable by written notice delivered to the
Purchaser. The notice shall set forth the date on which the
repurchase is to be effected. Such date shall not be more than 30
days after the date of the notice. The certificate(s) representing
the Purchased Shares to be repurchased shall, prior to the close of
business on the date specified for the repurchase, be delivered to
the Corporation properly endorsed for transfer. The Corporation
shall, concurrently with the receipt of such certificate(s), pay to
the Purchaser the Fair Market Value for each of the Purchased Shares
being repurchased. Payment shall be made in cash or cash equivalents.
(e) Additional Shares or Substituted Securities. In the event of the
declaration of a stock dividend, the declaration of any extraordinary
dividend payable in a form other than stock, a spin-off, a stock
split, an adjustment in conversion ratio, a recapitalization or a
similar transaction affecting the Corporation's outstanding
securities without receipt of consideration, any new, substituted or
additional securities or other property (including money paid other
than as an ordinary cash dividend) which are by reason of such
transaction distributed with respect to any Purchased Shares or into
which such Purchased Shares thereby become convertible shall
immediately be subject to the Right of Repurchase for Purchased
Shares. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number and/or class of
the Purchased Shares.
(f) Termination of Rights as Stockholder. If the Company, makes
available, at the time and place and in the amount and form provided
in this Agreement, the consideration for the Purchased Shares to be
repurchased in accordance with this Section 2, then after such time
the person from whom such Purchased Shares are to be repurchased
shall no longer have any rights as a holder of such Purchased Shares
(other than the right to receive payment of such consideration in
accordance with this Agreement). Such Purchased Shares shall be
deemed to have been repurchased in accordance with the applicable
provisions hereof, whether or not the certificate(s) therefor have
been delivered as required by this Agreement.
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(g) Escrow. Upon issuance, the certificates for Purchased Shares shall be
deposited in escrow with the Company to be held in accordance with
the provisions of this Agreement. Any new, substituted or additional
securities or other property described in Subsection (f) above shall
immediately be delivered to the Corporation to be held in escrow. All
regular cash dividends on Purchased Shares (or other securities at
the time held in escrow) shall be paid directly to the Purchaser and
shall not be held in escrow. Purchased Shares, together with any
other assets or securities held in escrow hereunder, shall be
surrendered to the Corporation for repurchase and cancellation upon
the Corporation's exercise of its Rights of Repurchase of Purchased
Shares.
SECTION 3. RIGHT OF REPURCHASE FOR RESTRICTED SHARES.
(a) Scope of Repurchase Right. All Restricted Shares shall be subject to
a right (but not an obligation) of repurchase by the Corporation.
(b) Condition Precedent to Exercise. The Right of Repurchase for
Restricted Shares shall be exercisable at any time following the date
when the Purchaser's Service terminates for any reason, with or
without cause, including (without limitation) death or disability.
(c) Lapse of Repurchase Right for Restricted Shares. The Right of
Repurchase for Restricted Shares contained in this Section 3 shall
lapse with respect to the Restricted Shares in accordance with the
vesting schedule set forth in the Summary of Stock Purchase .
(d) Repurchase Cost. If the Corporation exercises the Right of Repurchase
for Restricted Shares, it shall pay the Purchaser an amount equal to
the Purchase Price for each of the Restricted Shares being
repurchased.
(e) Exercise of Repurchase Right. The Right of Repurchase shall be
exercisable by written notice delivered to the Purchaser. The notice
shall set forth the date on which the repurchase is to be effected.
Such date shall not be more than 30 days after the date of the
notice. The certificate(s) representing the Restricted Shares to be
repurchased shall, prior to the close of business on the date
specified for the repurchase, be delivered to the Corporation
properly endorsed for transfer. The Corporation shall, concurrently
with the receipt of such certificate(s), pay to the Purchaser the
Purchase Price for each of the Restricted Shares being repurchased.
Payment shall be made in cash or cash equivalents.
(f) Additional Shares or Substituted Securities. In the event of the
declaration of a stock dividend, the declaration of any extraordinary
dividend payable in a form other than stock, a spin-off, a stock
split, an adjustment in conversion ratio, a recapitalization or a
similar transaction
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affecting the Corporation's outstanding securities without receipt of
consideration, any new, substituted or additional securities or other
property (including money paid other than as an ordinary cash
dividend) which are by reason of such transaction distributed with
respect to any Restricted Shares or into which such Restricted Shares
thereby become convertible shall immediately be subject to the Right
of Repurchase for Restricted Shares. Appropriate adjustments to
reflect the distribution of such securities or property shall be made
to the number and/or class of the Restricted Shares. Appropriate
adjustments shall also, after each such transaction, be made to the
price per share to be paid upon the exercise of the Right of
Repurchase for Restricted Shares in order to reflect any change in
the Corporation's outstanding securities effected without receipt of
consideration therefor; provided, however, that the aggregate
purchase price payable for the Restricted Shares shall remain the
same.
(g) Termination of Rights as Stockholder. If the Company, makes
available, at the time and place and in the amount and form provided
in this Agreement, the consideration for the Restricted Shares to be
repurchased in accordance with this Section 3, then after such time
the person from whom such Restricted Shares are to be repurchased
shall no longer have any rights as a holder of such Restricted Shares
(other than the right to receive payment of such consideration in
accordance with this Agreement). Such Restricted Shares shall be
deemed to have been repurchased in accordance with the applicable
provisions hereof, whether or not the certificate(s) therefor have
been delivered as required by this Agreement.
(h) Escrow. Upon issuance, the certificates for Restricted Shares shall
be deposited in escrow with the Company to be held in accordance with
the provisions of this Agreement. Any new, substituted or additional
securities or other property described in Subsection (f) above shall
immediately be delivered to the Corporation to be held in escrow. All
regular cash dividends on Restricted Shares (or other securities at
the time held in escrow) shall be paid directly to the Purchaser and
shall not be held in escrow. Restricted Shares, together with any
other assets or securities held in escrow hereunder, shall be
surrendered to the Corporation for repurchase and cancellation upon
the Corporation's exercise of its Rights of Repurchase for Restricted
Shares.
SECTION 4. OTHER RESTRICTIONS ON TRANSFER.
(a) Purchaser Representations. In connection with the issuance and
acquisition of Shares under this Agreement, the Purchaser hereby
represents and warrants to the Corporation as follows:
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i. The Purchaser is acquiring and will hold the Purchased Shares
for investment for his or her account only and not with a view
to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act.
ii. The Purchaser understands that the Purchased Shares have not
been registered under the Securities Act by reason of a specific
exemption therefrom and that the Purchased Shares must be held
indefinitely, unless they are subsequently registered under the
Securities Act or the Purchaser obtains an opinion of counsel,
in form and substance satisfactory to the Corporation and its
counsel, that such registration is not required. The Purchaser
further acknowledges and understands that the Corporation is
under no obligation to register the Purchased Shares.
iii. The Purchaser is aware of the adoption of Rule 144 by the
Securities and Exchange Commission under the Securities Act,
which permits limited public resales of securities acquired in a
non-public offering, subject to the satisfaction of certain
conditions, including (without limitation) the availability of
certain current public information about the issuer, the resale
occurring only after the holding period is required by Rule 144
has been satisfied, the sale occurring through an unsolicited
"broker's transaction", and the amount of securities being sold
during any three-month period not exceeding specified
limitations. The Purchaser acknowledges and understands that the
conditions for resale set forth in Rule 144 have not been
satisfied and that the Corporation has no plans to satisfy these
conditions in the foreseeable future.
iv. The Purchaser will not sell, transfer or otherwise dispose of
the Purchased Shares in violation of the Securities Act, the
Securities Exchange Act of 1934, or the rules promulgated
thereunder, including Rule 144 under the Securities Act. The
Purchaser agrees that he or she will not dispose of the
Purchased Shares unless and until he or she has complied with
all requirements of this Agreement applicable to the disposition
of Purchased Shares and he or she has provided the Corporation
with written assurances, in substance and form satisfactory to
the Corporation, that (A) the proposed disposition does not
require registration of the Purchased Shares under the
Securities Act or all appropriate action necessary for
compliance with the registration requirements of the Securities
Act or with any exemption from registration available under the
Securities Act (including Rule 144) had been taken and (B) the
proposed disposition will not result in the contravention of any
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transfer restrictions applicable to the Purchased Shares under
the Rules of the California Corporations Commissioner.
v. The Purchaser has been furnished with, and has had access to,
such information as he or she considers necessary or appropriate
for deciding whether to invest in the Purchased Shares, and the
Purchaser has had an opportunity to ask questions and receive
answers from the Corporation regarding the terms and conditions
of the issuance of the Purchased Shares.
vi. The Purchaser is aware that his or her investment in the
Corporation is a speculative investment which has limited
liquidity and is subject to the risk of complete loss. The
Purchaser is able, without impairing his or her financial
condition, to hold the Purchased Shares for an indefinite period
and to suffer a complete loss of his or her investment in the
Purchased Shares.
(b) Securities Law Restrictions. Regardless of whether the offering and
sale of Shares under the Plan have been registered under the
Securities Act or have been registered or qualified under the
securities laws of any state, the Corporation at its discretion may
impose restrictions upon the sale, pledge or other transfer of the
Purchased Shares (including the placement of appropriate legends on
stock certificates or the imposition of stop-transfer instructions)
if, in the judgment of the Corporation, such restrictions are
necessary or desirable in order to achieve compliance with the
Securities Act, the securities laws of any state or any other law.
(c) Market Stand-Off. In connection with any underwritten public offering
by the Corporation of its equity securities pursuant to an effective
registration statement filed under the Securities Act, including the
Corporation's initial public offering, the Purchaser shall not
directly or indirectly sell, make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any option or other
contract for the purchase of, purchase any option or other contract
for the sale of, or otherwise dispose of or transfer, or agree to
engage in any of the foregoing transactions with respect to, any
Purchased Shares without the prior written consent of the Corporation
or its underwriters. Such restrictions (the "Market Stand-Off") shall
be in effect for such period of time following the date of final
prospectus for the offering as may be requested by the Corporation or
such underwriters. In no event, however, shall such period exceed 180
days. The Market Stand-Off shall in any event terminate two years
after the date of the Corporation's initial public offering. In the
event of the declaration of a stock dividend, a spin-off, a stock
split, an adjustment in conversion ratio, a recapitalization or a
similar transaction affecting the Corporation's outstanding
securities without receipt of consideration, any new, substituted or
additional securities which are by reason of such transaction
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distributed with respect to any Shares subject to the Market
Stand-Off, or into which such Shares thereby become convertible,
shall immediately be subject to the Market Stand-Off. In order to
enforce the Market Stand-Off, the Corporation may impose
stop-transfer instructions with respect to the Purchased Shares until
the end of the applicable stand-off period. The Corporation's
underwriters shall be beneficiaries of the agreement set forth in
this Subsection (c). This Subsection (c) shall not apply to Shares
registered in the public offering under the Securities Act, and the
Purchaser shall be subject to this Subsection (c) only if the
directors and officers of the Corporation are subject to similar
arrangements.
(d) Rights of the Corporation. The Corporation shall not be required to
(i) transfer on its books any Purchased Shares that have been sold or
transferred in contravention of this Agreement or (ii) treat as the
owner of Purchased Shares, or otherwise to accord voting, dividend or
liquidation rights to, any transferee to whom Purchased Shares have
been transferred in contravention of this Agreement.
SECTION 5. SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided to the contrary, the
provisions of this Agreement shall inure to the benefit of, and be binding
upon, the Corporation and its successors and assigns and be binding upon the
Purchaser and the Purchaser's legal representatives, heirs, legatees,
distributees, assigns and transferees by operation of law, whether or not any
such person has become a party to this Agreement or has agreed in writing to
join herein and to be bound by the terms, conditions and restrictions hereof.
SECTION 6. NO RETENTION RIGHTS.
Nothing in this Agreement or in the Plan shall confer upon the
Purchaser any right to continue in Service for any period of specific duration
or interfere with or otherwise restrict in any way the rights of the
Corporation (or any Parent or Subsidiary employing or retaining the Purchaser)
or of the Purchaser, which rights are hereby expressly reserved by each, to
terminate his or her Service at any time and for any reason, with or without
cause.
SECTION 7. TAX ELECTION.
The acquisition of the Purchased Shares may result in adverse tax
consequences that may be avoided or mitigated by filing an election under Code
Section 83(b). Such election may be filed only within 30 days after the date of
purchase set forth in the Summary of Stock Purchase. The form for making the
Code Section 83(b) election is attached to this Agreement as an Exhibit. The
Purchaser should consult with his or her tax advisor to determine the tax
consequences of acquiring the Purchased Shares and the advantages and
disadvantages of filing the Code Section 83(b) election. The Purchaser
acknowledges that it is his or her sole responsibility, and
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not the Corporation's, to file a timely election under Code Section 83(b), even
if the Purchaser requests the Corporation or its representatives to make this
filing on his or her behalf.
SECTION 8. LEGENDS.
All certificates evidencing Purchased Shares shall bear the following
legends:
"THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE
CORPORATION AND THE REGISTERED HOLDER OF THE SHARES (OR THE
PREDECESOR IN INTEREST TO THE SHARES). SUCH AGREEMENT GRANTS TO
THE CORPORATION CERTAIN RIGHTS OF FIRST REFUSAL UPON AN
ATTEMPTED TRANSFER OF THE SHARES AND CERTAIN REPURCHASE RIGHTS
UPON TERMINATION OF SERVICE WITH THE CORPORATION. THE SECRETARY
OF THE CORPORATION WILL UPON WRITTEN REQUEST ▇▇▇▇▇▇▇ A COPY OF
SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE."
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
If required by the authorities of any state in connection with the issuance of
the Purchased Shares, the legend or legends required by such state authorities
shall also be endorsed on all such certificates.
SECTION 9. NOTICE.
Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery or upon deposit
with the United States Postal Service, by registered or certified mail, with
postage and fees prepaid. Notice shall be addressed to the
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Corporation at its principal executive office and to the Purchaser at the
address that he or she most recently provided to the Corporation.
SECTION 10. ENTIRE AGREEMENT.
The Summary of Stock Purchase, this Agreement and the Plan constitute
the entire contract between the parties hereto with regard to the subject
matter hereof. They supercede any other agreements, representations or
understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof.
SECTION 11. CHOICE OF LAW.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York (without application of the conflicts
of law principles thereof), as such laws are applied to contracts entered into
and performed in such State.
SECTION 12. DEFINITIONS.
(a) "Agreement" shall mean this Stock Purchase Agreement.
(b) "Board of Directors" shall mean the Board of Directors of the
Corporation, as constituted from time to time or, if a Committee has
been appointed, such Committee.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean a committee of the Board of Directors, as
decribed in Section 2 of the Plan.
(e) "Corporation" shall mean Laminates Acquisition Co., a Delaware
corporation.
(f) "Employee" shall mean any individual who is a common-law employee of
the Corporation, a Parent or a Subsidiary.
(g) "Fair Market Value" shall mean the fair market value of a Share, as
determined by the Board of Directors in good faith. Such
determination shall be conclusive and binding on all persons.
(h) "Parent" shall mean any corporation (other than the Corporation) in
an unbroken chain of corporations ending
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with the Corporation, if each of the corporations other than the
Corporation owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
(i) "Plan" shall mean the Laminates Acquisition Co. 1999 Stock Plan, as
amended.
(j) "Purchased Shares" shall mean the Shares purchased by the Purchaser
pursuant to this Agreement.
(k) "Purchase Price" shall mean the amount for which one Share may be
purchased pursuant to this Agreement, as specified in the Summary of
Stock Purchase.
(l) "Purchaser" shall mean the individual named in the Summary of Stock
Purchase.
(m) "Restricted Share" shall mean a Purchased Share that is subject to
vesting requirements.
(n) "Right of Repurchase for Purchased Shares" shall mean the
Corporation's right of repurchase described in Section 2.
(o) "Right of Repurchase for Restricted Shares" shall mean the
Corporation's right of repurchase described in Section 3.
(p) "Securities Act" shall mean the Securities Act of 1933, as amended.
(q) "Service" shall mean service as an Employee.
(r) "Share" shall mean one share of Stock.
(s) "Stock" shall mean the Common Stock of the Corporation, with a par
value of $0.01 per Share, and/or the Preferred Stock of the
Corporation, with a par value of $0.01 per Share.
(t) "Subsidiary" shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation,
if each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total
combined voting
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power of all classes of stock in one of the other corporations in
such chain.
(u) "Summary of Stock Purchase" shall mean the document so entitled to
which this Agreement is attached.
(v) "Transferee" shall mean any person to whom the Purchaser has directly
or indirectly transferred any Purchased Share.
(w) "Transfer Notice" shall mean the notice of a proposed transfer of
Purchased Shares described in Section 3.