Exhibit 10.11
▇▇▇▇▇▇▇.▇▇▇, INC.
COMMON STOCK PURCHASE AGREEMENT
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This Common Stock Purchase Agreement (the "Agreement") is made as of July
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12, 1999, by and between ▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the
"Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ ("Purchaser"), an employee of PETCO Animal
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Supplies, Inc. ("Petco").
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1. Sale of Stock. Subject to the terms and conditions of this
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Agreement, on the Purchase Date (as defined below) the Company will issue and
sell to Purchaser, and Purchaser agrees to purchase from the Company, 300,000
shares of the Company's Common Stock (the "Shares") at a purchase price of
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$0.6375 per Share for a total purchase price of $191,250.00. The term "Shares"
refers to the purchased Shares and all securities received in replacement of or
in connection with the Shares pursuant to stock dividends or splits, all
securities received in replacement of the Shares in a recapitalization, merger,
reorganization, exchange or the like, and all new, substituted or additional
securities or other properties to which Purchaser is entitled by reason of
Purchaser's ownership of the Shares. Upon payment therefor, such Shares will be
duly and validly issued, fully paid and non-assessable.
2. Purchase. The purchase and sale of the Shares under this Agreement
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shall occur at the principal office of the Company simultaneously with the
execution of this Agreement or at such other time and place as the Company and
Purchaser shall agree (the "Purchase Date"). On the Purchase Date, the
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Company will deliver to Purchaser a certificate representing the Shares to be
purchased by Purchaser (which shall be issued in Purchaser's name) against
payment of the purchase price therefor by cash or check. If Purchaser pays for
the Shares by executing a promissory note in favor of any third party, such note
must be full recourse.
3. Limitations on Transfer. In addition to any other limitation on
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transfer created by applicable securities laws, all Shares initially shall be
Restricted Shares and shall be subject to a right (but not an obligation) of
repurchase by the Company and a Company right of first refusal, and Purchaser
shall not transfer, assign, encumber or otherwise dispose of any Shares except
pursuant to this Section 3 hereof. If the Purchaser transfers any Restricted
Shares, then Section 3 shall apply to the Transferee to the same extent as to
the Purchaser.
(a) Right of Repurchase.
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(i) Scope of Right of Repurchase. All Shares initially shall
be subject to a right (but not an obligation) of repurchase by the Company, and
Purchaser shall not transfer, assign, encumber or otherwise dispose of any
Restricted Shares except pursuant to this Section 3 hereof.
(ii) Condition Precedent to Exercise. The Right of Repurchase
shall be exercisable during the 60-day period following the date when the
Purchaser's Service to Petco terminates for any reason.
(iii) Repurchase Price. If the Company exercises the Right of
Repurchase, it shall pay the Purchaser an amount equal to the Fair Market Value
for each of the Restricted Shares being repurchased. The Company's rights under
this Section 3 shall be freely assignable, in whole or in part. The term "Fair
Market Value" shall mean the greatest of (A) the most recent valuation completed
for the Company by an independent third party valuation firm, (B) the last sale
by the Company of its Common Stock to an independent third party, and (C) the
fair market value of the Common Stock as most recently determined by the
Company's Board of Directors.
(iv) Exercise of Repurchase Right. The Right of Repurchase
shall be exercisable only by written notice delivered to the Purchaser prior to
the expiration of the 60-day period specified in Subsection (a)(ii) above. 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 Company properly endorsed for transfer. The Company shall, concurrently
with the receipt of such certificate(s), pay to the Purchaser the purchase price
determined according to Subsection (a)(iii) above. Payment shall be made in cash
or cash equivalents or by canceling indebtedness to the Company incurred by the
Purchaser in the purchase of the Restricted Shares. The Right of Repurchase
shall terminate with respect to any Restricted Shares for which it has not been
timely exercised pursuant to this Subsection (a)(iv).
(v) Additional Shares or Substituted Securities. In the event
of the declaration of a stock dividend, the declaration of an 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 Company'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. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number and/or class of the
Restricted Shares.
(vi) 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 2, 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.
(vii) Termination of Right of Repurchase. The Right of
Repurchase shall terminate upon the earliest to occur of: (A) the closing of a
firm commitment underwritten public offering of the Company's Common Stock
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"); (B) a sale of all or
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substantially all of the assets of the Company or the merger or consolidation of
the Company with or into any other corporation or entity, other than a wholly-
owned subsidiary of the Company, or the sale of the outstanding stock of the
Company, as a result of which the stockholders of the Company immediately prior
to such transaction hold less that fifty percent (50%) of the voting power of
the surviving corporation; and (C) five (5) years from the date hereof.
(b) Right Of First Refusal.
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(i) Right of First Refusal. In the event that the Purchaser
proposes to sell, pledge or otherwise transfer to a third party any Shares
acquired under this Agreement, the Company shall have the Right of First Refusal
with respect to all (and not less than all) of such Shares. If the Purchaser
desires to transfer Shares acquired under this Agreement, the Purchaser shall
give a written Transfer Notice to the Company describing fully the proposed
transfer, including the number of Shares proposed to be transferred, the
proposed transfer price, the name and address of the proposed Transferee and
proof satisfactory to the Company that the proposed sale or transfer will not
violate any applicable federal or state securities laws. The Transfer Notice
shall be signed both by the Purchaser and by the proposed transferee
("Transferee") and must constitute a binding commitment of both parties to the
transfer of the Shares. The Company shall have the right to purchase all, and
not less than all, of the Shares at the Fair Market Value of such Shares
(subject, however, to any change in such terms permitted under Subsection (b)
below) by delivery of a notice of exercise of the Right of First Refusal within
30 days after the date when the Transfer Notice was received by the Company. The
Company's rights under this Subsection (a) shall be freely assignable, in whole
or in part.
(ii) Transfer of Shares. If the Company fails to exercise its
Right of First Refusal within 30 days after the date when it received the
Transfer Notice, the Purchaser may, not later than 90 days following receipt of
the Transfer Notice by the Company, conclude a transfer of the Shares subject to
the Transfer Notice on the terms and conditions described in the Transfer
Notice, provided that any such sale is made in compliance with applicable
federal and state securities laws and not in violation of any other contractual
restrictions to which the Purchaser is bound. Any proposed transfer on terms and
conditions different from those described in the Transfer Notice, as well as any
subsequent proposed transfer by the Purchaser, shall again be subject to the
Right of First Refusal and shall require compliance with the procedure described
in Subsection (a) above. If the Company exercises its Right of First Refusal,
the parties shall consummate the sale of the Shares on the terms set forth in
the Transfer Notice within 60 days after the date when the Company received the
Transfer Notice (or within such longer period as may have been specified in the
Transfer Notice).
(iii) Additional Shares or Substituted Securities. In the event
of the declaration of a stock dividend, the declaration of an 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 Company'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 Shares subject to this Section 3 or
into which such Shares thereby become
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convertible shall immediately be subject to this Section 3 Appropriate
adjustments to reflect the distribution of such securities or property shall be
made to the number and/or class of the Shares subject to this Section 3.
(iv) Termination of Right of First Refusal. Any other provision
of this Section 3 notwithstanding, in the event that the Stock is readily
tradable on an established securities market when the Purchaser desires to
transfer Shares, the Company shall have no Right of First Refusal, and the
Purchaser shall have no obligation to comply with the procedures prescribed by
Subsections (a) and (b) above.
(v) Permitted Transfers. This Section 3 shall not apply to (i)
a transfer by beneficiary designation, will or intestate succession or (ii) a
transfer 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 (i) Purchaser
provides ten (10) business days prior written notice to the Company of his or
her intent to so transfer the Shares and the Company provides written approval
of such transfer to Purchaser, and (ii) the Transferee agrees in writing on a
form prescribed by the Company to be bound by all provisions of this Agreement.
If the Purchaser transfers any Shares acquired under this Agreement, either
under this Subsection (e) or after the Company has failed to exercise the Right
of First Refusal, then this Section 3 shall apply to the Transferee to the same
extent as to the Purchaser.
(vi) 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 Shares to be purchased in accordance with
this Section 3, then after such time the person from whom such Shares are to be
purchased shall no longer have any rights as a holder of such Shares (other than
the right to receive payment of such consideration in accordance with this
Agreement). Such Shares shall be deemed to have been purchased in accordance
with the applicable provisions hereof, whether or not the certificate(s)
therefor have been delivered as required by this Agreement.
4. Purchaser's Put Right.
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(a) If (i) the Company's web site located at the URL of
▇▇▇.▇▇▇▇▇▇▇.▇▇▇ (the "▇▇▇▇▇▇▇.▇▇▇ Site") has not launched (defined as the date
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on which third party users are first able to access via the World Wide Web and
execute electronic commerce transactions on the Company's ▇▇▇▇▇▇▇.▇▇▇ Site) by
September 1, 1999, and (ii) PETCO Animal Supplies, Inc. exercises its Put Right
under the terms of the Series C Preferred Stock Purchase Agreement dated as of
even date herewith, the Company shall have the obligation to buy from Purchaser,
and Purchaser has the obligation to sell, all but not less than all of the
Common Stock held by Purchaser on such date for $191,250.00, the aggregate
purchase price paid by Purchaser for the Shares (the "Purchaser Put Right").
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The Company and the Purchaser shall each have a period of ten (10) days after
September 1, 1999 to elect to exercise its Purchaser Put Right by delivering
written notice (the "Exercise Notice") to the other party stating its election
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to exercise such Purchaser Put Right. The Exercise Notice shall be delivered by
overnight courier. Upon the exercise of the Purchaser Put Right by either
party, Purchaser shall then promptly deliver to the
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Company's executive offices to the attention of the Chief Financial Officer, the
stock certificate(s) for the Common Stock to be repurchased by the Company,
appropriately endorsed to the Company. The Exercise Notice, once delivered,
shall be irrevocable. The Company shall send a check to Purchaser in the amount
of the aggregate purchase price for the Common Stock within ten (10) business
days after receipt of such stock certificate.
(b) Upon the date of repayment by the Company to Purchaser of the
full purchase price for the Common Stock, this Agreement shall terminate in full
and Purchaser shall have no further rights under this Agreement or as a
stockholder of the Company. Purchaser agrees to do such further acts and to
execute, acknowledge and deliver such further documents or instruments necessary
to effect the intent of this Section. This Purchaser Put Right (i) may be
assigned by the Company; (ii) shall not be transferable by Purchaser; and (iii)
shall be subject to and limited by all applicable federal and state securities
and corporate laws and regulations.
5. Investment and Taxation Representations. In connection with the
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purchase of the Shares, Purchaser represents to the Company the following:
(a) Purchaser is an "accredited investor" as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act.
(b) 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 is
purchasing the Shares for investment for his or her own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act.
(c) Purchaser understands that the Shares have not been registered
under the Securities Act by reason of a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Purchaser's
investment intent as expressed herein.
(d) Purchaser further acknowledges and understands that the Shares
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser
further acknowledges and understands that the Company is under no obligation to
register the Shares. Purchaser understands that the certificate evidencing the
Shares will be imprinted with a legend which prohibits the transfer of the
Shares unless they are registered or such registration is not required in the
opinion of counsel for the Company.
(e) Purchaser is familiar with the provision of Rule 144, promulgated
under the Securities Act, which, in substance, permit 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, including, among other things: (i)
the availability of certain public information about the Company; (ii) the
resale occurring not less than one year after the party has purchased and made
full payment for, within the meaning of Rule 144, the securities to be sold;
and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two years, (iii) the sale being made through a broker
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in an unsolicited "broker's transaction" or in transactions directly with a
market maker (as such term is defined under the Securities Exchange Act of 1934)
and the amount of securities being sold during any three month period not
exceeding the specified limitations stated therein, if applicable.
(f) Purchaser further understands that at the time he or she wishes
to sell the Shares there may be no public market upon which to make such a sale,
and that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, Purchaser would be precluded from selling the Shares under Rule 144
even if the one-year minimum holding period had been satisfied.
(g) Purchaser further understands 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; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the Securities and Exchange Commission has expressed
its opinion that persons proposing to sell private placement securities other
than in a registered offering and otherwise than pursuant to Rule 144 will have
a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their own
risk.
(h) Purchaser understands that Purchaser may suffer adverse tax
consequences as a result of Purchaser's purchase or disposition of the Shares.
Purchaser represents that Purchaser has consulted any tax consultants Purchaser
deems advisable in connection the purchase or disposition of the Shares and that
Purchaser is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders.
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(a) Legends. The certificate or certificates representing the Shares
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shall bear the following legends (as well as any legends required by applicable
state and federal corporate and securities laws):
(i) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.
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(ii) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY
OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
(iii) Any legend required to be placed thereon by the California
Commissioner of Corporations and other applicable state
securities laws.
(b) Stop-Transfer Notices. Purchaser agrees that, in order to ensure
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compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to
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transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
7. No Employment Rights. Nothing in this Agreement shall affect in any
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manner whatsoever the right or power of Petco, or a parent or subsidiary of
Petco, to terminate Purchaser's employment, for any reason, with or without
cause.
8. Market Standoff Agreement. In connection with the initial public
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offering of the Company's securities, Purchaser agrees not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any Shares (other than those included in the registration) without the prior
written consent of the Company or underwriters managing any underwritten
offering of the Company's securities, as the case may be, for such period of
time (not to exceed one hundred eighty (180) days) from the effective date of
such registration as may be requested by the Company or such managing
underwriters and to execute an agreement reflecting the foregoing as may be
requested by the underwriters at the time of the public offering.
9. Escrow of Shares. For purposes of facilitating the enforcement of the
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provisions hereof, Purchaser agrees, immediately upon receipt of the
certificate(s) for the Shares subject to the Repurchase Option and Right of
First Refusal, to deliver such certificate(s), together with an Assignment
Separate from Certificate in the form attached to this Agreement as Exhibit A
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executed by Purchaser and by Purchaser's spouse (if required for transfer), in
blank, to the Secretary of the Company, or the Secretary's designee, to hold
such certificate(s) and Assignment Separate from Certificate in escrow and to
take all such actions and to effectuate all such transfers and/or releases as
are in accordance with the terms of this Agreement. Purchaser hereby
acknowledges that the Secretary of the Company, or the Secretary's designee, is
so appointed as the escrow holder with the foregoing authorities as a material
inducement to make this Agreement and that said appointment is coupled with an
interest and is accordingly irrevocable.
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Purchaser agrees that said escrow holder shall not be liable to any party hereof
(or to any other party), except that the Company agrees to pay all costs
associated with obtaining a replacement certificate in the event the Purchaser's
original certificate representing the Shares is lost while in the custody of the
Secretary of the Company, or of the Secretary's designee. The escrow holder may
rely upon any letter, notice or other document executed by any signature
purported to be genuine and may resign at any time. Purchaser agrees that if the
Secretary of the Company, or the Secretary's designee, resigns as escrow holder
for any or no reason, the Board of Directors of the Company shall have the power
to appoint a successor to serve as escrow holder pursuant to the terms of this
Agreement.
10. Miscellaneous.
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(a) Governing Law. This Agreement and all acts and transactions
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pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets
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forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the parties
to this Agreement. The failure by either party to enforce any rights under this
Agreement shall not be construed as a waiver of any rights of such party.
(c) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded, and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(d) Construction. This Agreement is the result of negotiations
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between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product
of all of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.
(e) Notices. Any notice required or permitted by this Agreement
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shall be in writing and shall be deemed sufficient when delivered personally or
sent by telegram or fax or forty-eight (48) hours after being deposited in the
U.S. mail, as certified or registered mail, with postage prepaid, and addressed
to the party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(f) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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(g) Successors and Assigns. The rights and benefits of this Agreement
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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.
(h) California Corporate Securities Law. THE SALE OF THE SECURITIES
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WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON THE QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first set forth
above.
▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Chief Financial Officer
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Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PURCHASER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT SHALL
CONFER UPON PURCHASER ANY RIGHT WITH RESPECT TO CONTINUATION OF SUCH EMPLOYMENT
OR CONSULTING RELATIONSHIP WITH PETCO, NOR SHALL IT INTERFERE IN ANY WAY WITH
PURCHASER'S RIGHT OR PETCO'S RIGHT TO TERMINATE PURCHASER'S EMPLOYMENT OR
CONSULTING RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.
PURCHASER:
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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(Signature)
Address:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, spouse of ▇▇▇▇▇ ▇▇▇▇▇▇, have read and hereby approve the
foregoing Agreement. In consideration of the Company's granting my spouse the
right to purchase the Shares as set forth in the Agreement, I hereby agree to be
irrevocably bound by the Agreement and further agree that any community property
or other such interest shall be similarly bound by the Agreement. I hereby
appoint my spouse as attorney-in-fact with respect to any amendment or exercise
of any rights under the Agreement.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Spouse of ▇▇▇▇▇ ▇▇▇▇▇▇