EXHIBIT 10.39
INVENTA CORPORATION
STOCK RESTRICTION AGREEMENT
This Stock Restriction Agreement (the "Agreement") is entered into as of
January __, 2000, (the "Effective Date") by and between Inventa Corporation, a
California Corporation (the "Company"), and ________________________ the
"Shareholder" as recipient of shares of Common Stock of the Company (the
"Shares").
WHEREAS, the Company is acquiring all outstanding shares of XTend-Tech,
Inc. ("XTend"), including those shares held by the Shareholder, and
WHEREAS, the Company desires that certain restrictions apply to the Shares,
and the Shareholder is willing to accept restrictions on the Shares according to
the terms and conditions contained herein in consideration of his continued
employment and the Company's acquisition of all the Common Stock of XTend (the
"Acquisition") and the agreement of certain other owners of XTend Common Stock
to place similar restrictions on the Shares held by them, therefore:
In consideration of the mutual covenants and representations herein set
forth, the Company and the Shareholder agree as follows:
1. Definitions.
(a) "Shares" refers to the _______ shares of Common Stock of the
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Company received by the Shareholder in the Acquisition and all shares
subsequently received in respect thereof as a consequence of stock dividends,
stock splits, reverse stock splits, recapitalizations, mergers, reorganizations
or the like, and all new, substituted or additional securities or other
properties to which Shareholder is or may be entitled by reason of Shareholder's
ownership of the Shares.
(b) "Unvested Shares" shall mean any of the Shares which have not yet
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been released pursuant to Section 2 below from the Company's Repurchase Option
described in Section 3.
(c) "Repurchase Option" shall have the meaning set forth in Section 3.
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2. Vesting. The Shares shall vest and be released from the Company's
Repurchase Option in accordance with the following provisions:
(a) Thirty-five percent (35%) of the total number of Shares shall vest
and be released immediately upon the closing of the Acquisition;
(b) Sixty-five percent (65%) of the Shares shall be subject to the
Company's Repurchase Option as of January ___, 2000 (the "Release Start Date").
The Shares shall vest and be released from the Company's Repurchase Option as
follows:
(i) Fifteen percent (15%) of the Shares shall vest and be released
from the Company's Repurchase Option on the first anniversary of the Effective
Date of this Agreement if Shareholder is still employed by the Company on that
date.
(ii) One-forty-eighth (1/48) of the total number of Shares shall vest
and be released from the Repurchase Option beginning on the last day of the
month in which the first anniversary of the Effective Date of this Agreement
occurs, and continuing on the last day of each month thereafter for the next 23
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months based upon Shareholder's continued employment with Company until all such
Shares are released, after a total elapsed period of three (3) years from the
Effective Date of this Agreement.
3. Repurchase Option; Termination.
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(a) Repurchase. Effective as of the date (the "Termination Date") which is
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the date of (i) receipt by the President or Controller of the Company of written
notice of Shareholder's voluntary termination of employment, or (ii) the
involuntary termination for cause of the Shareholder's employment with or
service to the Company, the Company or its assignee shall have an irrevocable,
exclusive option (the "Repurchase Option") for a period of fifteen (15) business
days from the Termination Date to repurchase at a price equal to $.01 per share
(the "Purchase Price") up to that number of shares which shall constitute
Unvested Shares as of the Termination Date. For the purposes of this Agreement
"cause" means, and is limited to, the following: the Shareholder's (1) gross
negligence in the performance of his agreed upon duties for the Company; (2)
willful refusal to follow directives of Company senior management after receipt
of written warning with respect thereto, which is not cured within five (5)
business days thereof; (3) commission of a felony; (4) inability to perform his
agreed upon duties for the Company by reason of alcoholism or drug dependency;
and (5) refusal to appear at his regular place of work for the Company. A
resignation by the Shareholder from his employment with or service to the
Company shall be for "Good Reason" if: (a) the regular place of Shareholder's
employment is relocated to a site more than thirty (30) miles from the
Shareholder's established regular site of employment at the time of Closing, or
(b) there is a reduction in the Shareholder's annual compensation from the
Company, unless at least seventy five percent (75%) of all other employees in
the same class are also subject to the same percentage reduction in their annual
compensation from the Company. Nothing in this Section 3(a) shall preclude the
Shareholder's right to claim that his termination was the result of a
constructive termination, and if Shareholder prevails on said constructive
termination claim, the termination shall then be deemed to have been with "Good
Reason".
(b) Termination. Anything to the contrary not withstanding, if the
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Shareholder's employment with or service to the Company shall be terminated (i)
by the Company without cause, or (ii) by the Shareholder for Good Reason, or
(iii) upon the Shareholder's death or permanent disability, then in any such
event, effective as of the date of such event (the "Expiration Date"), the
Repurchase Option with respect to such Unvested Shares shall automatically and
immediately be terminated and released, and such Unvested Shares shall vest in
accordance with Section 2(b)(i) and (ii) but without regard to the continued
employment requirement.
(c) Mechanics of Repurchase. In order to exercise the Repurchase Option,
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the Company shall deliver written notice of exercise to Shareholder within the
time period specified in
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paragraph (a). The Company shall pay to Shareholder within the time period
specified in paragraph (a), the aggregate repurchase price by cash or check.
Upon delivery of such notice, (i) the Company or its assignee shall become the
legal and beneficial owner of the Shares being repurchased and all rights and
interests therein or relating thereto, (ii) the Company shall have the right to
retain and transfer to its own name or the name of its assignee the repurchased
Shares, and (iii) Shareholder shall retain solely the right to receive the
payment for the Shares so repurchased.
4. Restrictions on Transfer. Except for the transfer of Unvested Shares to
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the Company or its assignee as contemplated by this Agreement, no Unvested
Shares or any beneficial interest therein shall be transferred, encumbered or
otherwise disposed of in any way until the release of such Shares from the
Repurchase Option in accordance with the provisions of this Agreement.
5. Legends. The share certificate evidencing the Shares shall be endorsed
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with the following restrictive legends (in addition to any legend required under
applicable state securities laws):
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, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
SAYING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN RESTRICTIONS UPON
TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS AVAILABLE UPON THE REQUEST OF
THE REGISTERED HOLDER HEREOF TO THE SECRETARY OF THE COMPANY.
6. Adjustments for Stock Splits, etc. All references to the number of
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Shares and the purchase price of the Shares in this Agreement shall be
appropriately adjusted to reflect any stock dividend, stock split,
recapitalization, merger, reorganization or other change in the Shares which may
be made by the Company after the date of this Agreement.
7. Escrow. As security for the faithful performance of this Agreement,
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Shareholder agrees, immediately, to deliver such certificate(s), together with
two stock powers in the form attached hereto as Exhibit B, executed by
Shareholder (with the date and number of Shares left blank), to the Secretary of
the Company ("Escrow Agent"). Escrow Agent shall hold such Shares pursuant to
an escrow agreement in the form attached hereto as Exhibit A, by which Escrow
Agent shall be authorized to take all such actions and to effectuate all such
transfers and/or releases of such
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Shares as are in accordance with the terms of this Agreement. The Shares shall
be released from escrow upon termination of the Repurchase Option provided for
in Section 3.
8. Market Stand-Off Agreement. Shareholder and each transferee of the
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Shares issued hereunder agrees by acceptance hereof or thereof not to sell, make
a short sale of, loan, grant any options for the purchase of, or otherwise
dispose of any shares of Common Stock of the Company held by Shareholder without
the prior written consent of the Company or the underwriters managing any
underwritten public offering of the Company's securities, for such period from
the effective date of the offering as the managing underwriters shall request
(but not to exceed one hundred eighty (180) days), and further agrees to execute
any agreement reflecting the above provision as may be requested by the
underwriters at the time of any such public offering.
9. General Provisions.
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(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California as they apply to contracts
entered into and wholly to be performed within such state.
(b) This Agreement, including its Exhibits, represents the entire
agreement between the parties with respect to the subject matter hereof.
(c) Any notice, demand or request required or permitted to be given by
either the Company or Shareholder pursuant to the terms of this Agreement shall
be in writing and shall be deemed given when delivered, if delivered personally;
three business days after the business day of deposit in the U.S. mail, by
registered or certified mail with postage prepaid; one business day after the
business day of facsimile transmission, if a confirmation copy is sent by first
class mail with postage prepaid; or, one business day after the business day of
deposit with Federal Express or similar overnight carrier, freight prepaid; in
any such case addressed to any party at such party's address as set forth at the
end of this Agreement or such other address as the party may designate by
notifying the other in writing.
(d) The rights and benefits of the Company under this Agreement shall be
transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by the
Company's successors and assigns. The rights and obligations of Shareholder
under this Agreement may only be assigned with the prior written consent of the
Company.
(e) Either party's failure to enforce any provision or provisions of this
Agreement shall not in any way be construed as a waiver of any such provision or
provisions, nor prevent that party from thereafter enforcing each and every
other provision of this Agreement. The rights granted both parties herein are
cumulative and shall not constitute a waiver of either party's right to assert
all other legal remedies available to it under the circumstances.
(f) Shareholder agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purposes or intent of this
Agreement.
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10. Attorneys Fees.
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If any litigation or any other proceeding is commenced in connection with or
related to this Agreement, the losing party shall pay the expenses, including
but not limited to, the reasonable attorneys' fees and expenses, and costs,
including costs of attorney travel of the prevailing party. The court shall be
entitled to prorate said fees and expenses between the parties in the event that
a suit or proceeding is successful only in part.
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By Shareholder's signature below, Shareholder represents that Shareholder
hereby accepts this Agreement subject to all of the terms and provisions
thereof. Shareholder has reviewed this Agreement in its entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of this Agreement.
"THE COMPANY"
INVENTA CORPORATION Address
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By:_____________________________
Title:__________________________ Address
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"SHAREHOLDER"
________________________
Signature Page to Inventa Corporation Stock Restriction Agreement
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EXHIBIT A
JOINT ESCROW INSTRUCTIONS
January __, 2000
Secretary
Inventa Corporation
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Dear Sir:
As Escrow Agent for both Inventa Corporation, a California corporation (the
"Company"), and the undersigned holder of stock of the Company ("Shareholder"),
you are hereby authorized and directed to hold the documents delivered to you
pursuant to the terms of that certain Stock Restriction Agreement ("Agreement")
between the Company and the undersigned, to which a copy of these Joint Escrow
Instructions is attached as Exhibit A, in accordance with the following
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instructions:
1. In the event the Company and/or any assignee of the Company (referred
to collectively for convenience herein as the "Company") exercises the
Repurchase Option set forth in the Agreement, the Company shall give to
Shareholder and you a written notice specifying the number of shares of stock to
be purchased, the purchase price, and the time for a closing hereunder at the
principal office of the Company. Shareholder and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of the notice, unless you receive objection from such
Shareholder within ten days of such notice, in which event you shall hold the
Shares subject to the notice, and all dividends related thereto, until the
dispute with respect to such Shares is resolved by the parties, or by
arbitration or a court of competent jurisdiction. Until resolved neither the
Company nor the Shareholder shall have the right to vote such Shares.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver the same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, in accordance with the Agreement, against the simultaneous delivery to
you of the purchase price (by check) for the number of shares of stock being
purchased pursuant to the exercise of the Repurchase Option.
3. Shareholder irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to the shares as defined in the Agreement.
Shareholder does hereby irrevocably constitute and appoint you as his attorney-
in-fact and agent for the term of this escrow to execute with respect to such
securities all documents necessary or appropriate to make such securities
negotiable and to complete any
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transaction herein contemplated. Subject to the provisions of this paragraph 3,
Shareholder shall exercise all rights and privileges of a stockholder of the
Company while the stock is held by you.
4. Upon written request of Shareholder, but no more than once each year,
unless the Repurchase Option has been exercised, you will deliver to Shareholder
a certificate or certificates representing so many shares of stock as have been
released from the Unvested Shares subject to the Repurchase Option in accordance
with the terms thereof. Fifteen days (15) after the Expiration Date, you will
deliver to Purchaser a certificate or certificates representing the aggregate
number of Shares not purchased by the Company or its assignees pursuant to
exercise of the Repurchase Option.
5. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
6. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Shareholder while acting in
good faith, and any act done or omitted by you pursuant to the advice of your
own attorneys shall be conclusive evidence of such good faith.
7. You are hereby expressly authorized to comply with and obey orders,
judgments or decrees of any duly approved arbitrator or court of competent
jurisdiction. In case you obey or comply with any such order, judgment or
decree, you shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction.
8. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
9. You shall not be liable for the outlawing of any rights under any
applicable statute of limitations with respect to these Joint Escrow
Instructions or any documents deposited with you.
10. You shall be entitled to employ such legal counsel and other experts
as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer of the Company or if you shall resign by written
notice to each party. In the event of any such termination, the Company and the
Shareholder shall appoint a successor Escrow Agent satisfactory to both of them.
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12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, by written objection or other written notice of any party
hereto, or otherwise, you are authorized and directed to retain in your
possession without liability to anyone all or any part of said securities until
such disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a duly appointed
arbitrator or court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but you shall be under no duty
whatsoever to institute or defend any such proceedings.
14. Any and all disputes or controversies arising from or respecting this
agreement shall be decided by binding arbitration under the rules of the
American Arbitration Association. The arbitrator shall consist of one arbitrator
mutually agreed upon by both parties. Arbitration shall take place in San Mateo
County, California or any other location mutually agreeable to the parties. At
the request of either party, arbitration proceedings will be conducted in the
utmost secrecy. The arbitrator shall be able to decree any and all relief of an
equitable nature and to award damages, with or without an accounting and costs.
The decree of judgment of an award rendered by the arbitrator may be entered in
any court of competent jurisdiction.
15. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given when delivered, if given by personal
delivery: three (3) business days after the business day of deposit in the
United States Post Office, by registered or certified mail with postage and fees
prepaid; one (1) business day after the business day of facsimile transmission,
if a confirmation copy is sent via first class mail, postage prepaid; or one (1)
business day after the business day of deposit with Federal Express or similar
overnight carrier, freight prepaid; in any such case addressed to each of the
other parties thereunto entitled at the addresses indicated in the Company's
records, or at such other addresses as a party may designate by ten days'
advance written notice to each of the other parties hereto.
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
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17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
Very truly yours,
COMPANY:
INVENTA CORPORATION
a California corporation
By:___________________________________
Title:________________________________
SHAREHOLDER:
______________________________________
ESCROW AGENT:
___________________
Secretary
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Signature Page to Escrow Agreement
EXHIBIT B
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STOCK POWER AND ASSIGNMENT
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SEPARATE FROM CERTIFICATE
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FOR VALUE RECEIVED and pursuant to that certain Stock Restriction Agreement
dated as of January __, 2000 the undersigned hereby sells, assigns and transfers
unto _____________________ ______________________________, __________shares of
the Common Stock of Inventa Corporation, a California Corporation (the
"Company"), standing in the undersigned's name on the books of the Company
represented by Certificate No. _____ delivered herewith, and does hereby
irrevocably constitute the Secretary of the Company as attorney-in-fact, with
full power of substitution, to transfer said stock on the books of the Company.
Dated: ________________, ______
________________________________
(Signature)
________________________________
(Please Print Name)
This Stock Power may only be utilized for the repurchase of Unvested Shares
by the Company to the extent provided and otherwise in accordance with the
provisions of the Stock Restriction Agreement dated as of January __, 2000 by
and between the signatory hereto and the Company.