EXHIBIT 10.16
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STOCK RESTRICTION AGREEMENT
AGREEMENT made this 14th day of July, 1998, between Tiger Networks
Corporation, a Delaware corporation (the "Company"), and Hwang-Ruey Wang (the
"Employee").
WHEREAS, as of the date hereof, the Company has entered into a Series A
Preferred Stock Purchaser Agreement (the "Purchase Agreement") by and among the
Company, Bing Yang and Hwang-Ruey Wang and the Purchasers named on Exhibit A
thereto pursuant to which the Purchasers are acquiring 7,000,000 shares of
Series A Preferred Stock, par value $.01 per share, of the Company;
WHEREAS, it is a condition under the Purchase Agreement that this Agreement
be executed by the parties hereto, and the parties are willing to execute this
Agreement and to be bound by the provisions hereof;
WHEREAS, the parties hereto believe that it would be in the best interest
of the Company if they agree, as provided in this Agreement, on certain matters
relating to the Employee's Shares (as defined below).
NOW, THEREFORE, in consideration of the foregoing, the agreements set forth
below, and the parties' desire to provide for continuity of ownership of the
Company to further the interests of the Company, the parties hereby agree with
each other as follows:
1. Restriction of Shares. The Employees holds as of the date hereof, 1,270,000
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shares (the "Shares") of common stock, $.00001 par value per share, of the
Company (the "Common Stock"). The Employee agrees that the Shares shall be
subject to the Escrow Agreement referred to in Section 3(a) of this
Agreement, the Purchase Option set forth in Section 2 of this Agreement and
the restrictions on transfer set forth in Section 4 of this Agreement.
2. Purchase Option.
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(a) In the event that the Employee ceases to be employed by the Company for any
reason or no reason, with or without cause, prior to July 14, 2002, the
Company shall have the right and option (the "Purchase Option") to purchase
from the Employee, for the sum of $.01 per share (the "Option Price"), a
portion of the Shares determined as follows:
If Cessation of Employment Occurs Percentage of Shares Subject to Purchase Option
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From and after July 14, 1998 100%, less 5% of the Shares for each full three-month period
from and after July 14, 1997 during which the Employee is
employed by the Company.
From and after July 14, 2002 -0-
(b) As used herein, "Vested Shares" at any particular time shall mean Shares
that are then no longer subject to the Purchase Option.
(c) Upon the acquisition of all or substantially all of the business of the
Company by merger, sale of assets or otherwise (an "Acquisition"), all of
the Shares shall become Vested Shares unless the acquiring company in such
Acquisition agrees that the Purchase Option shall continue in effect in
accordance with Section 8(b) hereof and that all Shares that are not Vested
Shares shall become Vested Shares if the Employee's employment with the
Company is terminated without Cause or such employment terminates for Good
Reason within 12 months after the closing of such Acquisition. For
purposes hereof, "Cause" shall mean the willful engaging by the Employee in
illegal conduct or gross misconduct which is materially injurious to the
Company. "Good Reason" shall mean (i) any diminution in the Employee's
position, title or responsibilities, (ii) any required relocation of the
Employee to a principal place of business more than 35 miles from his
principal place of business immediately prior to the Acquisition, or (iii)
any diminution in the Employee's annual salary from that in effect
immediately prior to the Acquisition.
(d) For purposes of this Agreement, employment with the Company shall include
employment with a parent or subsidiary of the Company.
3. Exercise of Purchase Option and Closing.
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(a) The Company may exercise the Purchase Option by delivering or mailing to
the Escrow Agent pursuant to and as required by the Escrow Agreement, dated
as the date hereof, by and among the Company, Hutchins, Wheeler & Dittmar,
PC, as Agent, and the Participants signatory thereto (the "Escrow
Agreement"), within sixty (60) days after the termination of the employment
of the Employee with the Company, a written notice of exercise of the
Purchase Option. Such notice shall specify the number of Shares to be
purchased. If and to the extent the Purchase Option is not so exercised by
the giving of such a notice within such 60 day period, the Purchase Option
shall automatically expire and terminate effective upon the expiration of
such 60 day period.
(b) Within 10 days after his receipt of the Company's notice of the exercise of
the Purchase Option pursuant to subsection (a) above, the Escrow Agent
shall tender to the Company at its principal offices the certificate or
certificates representing the Shares which the Company has elected to
purchase, duly endorsed in blank by the Employee or with duly endorsed
stock powers attached thereto, all in form suitable for the transfer of
such Shares to the Company. Upon its receipt of such certificate or
certificates, the Company shall deliver or mail to the Employee a check in
the amount of the aggregate Option Price therefor.
(c) After the time at which any Shares are required to be delivered to the
Company for transfer to the Company pursuant to subsection (b) above, the
Company shall not pay any dividend to the Employee on account of such
Shares or permit the Employee to exercise any of the privileges or rights
of a stockholder with respect to such Shares, but shall, in so far as
permitted by law, treat the Company as the owner of such Shares.
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(d) The Option Price may be payable, at the option of the Company, in
cancellation of all or a portion of any outstanding indebtedness of the
Employee to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon exercise of the
Purchase Option, and any fraction of a Share resulting from a computation
made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
4. Restrictions on Transfer.
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(a) Except as otherwise provided in subsection (b) below, the Employee shall
not, during the term of the Purchase Option, sell, assign, transfer,
pledge, hypothecate or otherwise dispose of, by operation of law or
otherwise (collectively "transfer"), any of the Shares, or any interest
therein, unless and until such Shares are no longer subject to the Purchase
Option.
(b) Notwithstanding the foregoing, the Employee may transfer Shares to or for
the benefit of any spouse, child or grandchild, or to a trust for their
benefit, provided that such Shares shall remain subject to this Agreement
(including without limitation the restrictions on transfer set forth in
this Section 4 and the Purchase Option) and such permitted transferee
shall, as a condition to such transfer, deliver to the Company a written
instrument confirming that such transferee shall be bound by all of the
terms and conditions of this Agreement.
5. Effect of Prohibited Transfer. The Company shall not be required (a) to
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transfer on its books any of the Shares which shall have been sold or
transferred in violation of any of the provisions set forth in this Agreement,
or (b) to treat as owner of such Shares or to pay dividends to any transferee to
whom any such Shares shall have been so sold or transferred.
6. Restrictive legend. All certificates representing Shares shall have affixed
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thereto a legend in substantially the following form, in addition to any other
legends that may be required under federal or state securities laws:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and an option to purchase set forth in a
certain Stock Restriction Agreement between the Corporation and the
registered owner of these shares (or his predecessor in interest), and
such Agreement is available for inspection without charge at the
office of the Secretary of the Corporation."
7. Investment Representations. The Employee represents, warrants and covenants
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as follows that as of the time of Purchase of the Shares and as of the date
hereof:
(a) The Employee purchased the Shares for his own account for investment only,
and not with a view to, or for sale in connection with, any distribution of
the Shares in
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violation of the Securities Act of 1933 (the "Securities Act"), or any rule
or regulation under the Securities Act.
(b) The Employee had such opportunity as he has deemed adequate to obtain from
representatives of the Company such information as was necessary to permit
him to evaluate the merits and risks of his investment in the Company.
(c) The Employee had and has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the
purchase of the Shares and to make an informed investment decision with
respect to such purchase.
(d) The Employee could and can afford a complete loss of the value of the
Shares and is able to bear the economic risk of holding such Shares for an
indefinite period.
(e) The Employee understood and understands that (i) the Shares have not been
registered under the Securities Act and are "restricted securities" within
the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be
sold, transferred or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from registration is
then available; (iii) in any event, the exemption from registration under
Rule 144 will not be available for at least two years and even then will
not be available unless a public market then exists for the Common Stock,
adequate information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are complied with; and
(iv) there is now no registration statement on file with the Securities and
Exchange Commission with respect to any stock of the Company and the
Company has no obligation or current intention to register the Shares under
the Securities Act.
(f) A legend substantially in the following form will be placed on the
certificate representing the Shares:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be sold,
transferred or otherwise disposed of in the absence of an effective
registration statement under such Act or an opinion of counsel
satisfactory to the Corporation to the effect that such registration
is not required."
8. Adjustments for Stock Splits, Stock Dividends, etc.
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(a) If from time to time during the term of the Purchase Option there is any
stock split-up, stock dividend, stock distribution or other
reclassification of the Common Stock of the Company, any and all new,
substituted or additional securities to which the Employee is entitled by
reason of his ownership of the Shares shall be immediately subject to the
Purchase Option, the restrictions on transfer and other provisions of this
Agreement in the same manner and to the same extent as the Shares, and the
Option Price shall be appropriately adjusted.
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(b) If the Shares are converted into or exchanged for, or stockholders of the
Company receive by reason of any distribution in total or partial
liquidation, securities of another corporation, or other property
(including cash), pursuant to any Acquisition, then the right's of the
Company under this Agreement shall inure to the benefit of the Company's
successor and this Agreement shall apply to the securities or other
property received upon such conversion, exchange or distribution in the
same manner and to the same extent as the Shares.
9. Withholding Taxes.
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(a) The Employee acknowledges and agrees that the Company has the right to
deduct from payments of any kind otherwise due to the Employee any federal,
state or local taxes of any kind required by law to be withheld with
respect to the purchase of the Shares by the Employee.
(b) If the Employee elects, in accordance with Section 83(b) of the Internal
Revenue Code of 1986, as amended, to recognize ordinary income in the year
of acquisition of the Shares, the Company will require at the time of such
election an additional payment for withholding tax purposes based on the
difference, if any, between the purchase price for such Shares and the fair
market value of such Shares as of the day immediately preceding the date of
the purchase of such Shares by the Employee.
10. Severability. The invalidity or unenforceability of any provision of this
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Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, and each other provision of this Agreement shall be severable
and enforceable to the extent permitted by law.
11. Waiver. Any provision contained in this Agreement may be waived, either
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generally or in any particular instance, by the Board of Directors of the
Company.
12. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the Company and the Employee and their respective heirs, executors,
administrators, legal representatives, successors and assigns, subject to the
restrictions on transfer set forth in Section 4 of this Agreement.
13. No Rights To Employment. Nothing contained in this Agreement shall be
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construed as giving the Employee any right to be retained, in any position, as
an employee of the Company.
14. Notice. All notices required or permitted hereunder shall be in writing
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and deemed effectively given upon personal delivery or upon deposit in the
United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party hereto at the address shown beneath his or its
respective signature to this Agreement, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 14.
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15. Pronouns. Whenever the context may require, any pronouns used in this
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Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
16. Entire Agreement. This Agreement constitutes the entire agreement between
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the parties, and supersedes all prior agreements and understandings, relating to
the subject Matter of this Agreement.
17. Amendment. This Agreement may be amended or modified only by a written
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instrument executed by both the Company and the Employee.
18. Governing Law. This Agreement shall be construed, interpreted and enforced
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in accordance with the laws of the Commonwealth of Massachusetts.
19. Escrow. The Shares shall be held in escrow, pursuant to the attached
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Escrow Agreement, to the extent they are subject to the Purchase Option.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first written above.
TIGER NETWORKS CORPORATION
By: /s/ Bing Yang
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Name: Bing Yang
Title: President
EMPLOYEE
/s/ Hwang-Ruey Wang
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(Signature)
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Hwang-Ruey Wang
Address: 26 Todd Road
Nashua NH 03060
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AMENDMENT
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TO STOCK RESTRICTION AGREEMENT
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Amendment made this 20 day of January, 1999 between Convergent Networks,
Inc., a Delaware corporation (the "Company") and Hwang-Ruey Wang (the
"Employee").
WHEREAS, the Company and the Employee are party to that certain Stock
Restriction Agreement dated as of July 14, 1998 (the "Agreement"), pursuant to
which certain restrictions have been placed on the shares of Common Stock owned
by the Employee;
WHEREAS, the Agreement does not accurately reflect the understanding of the
parties as of such date and the Company and the Employee wish to amend the
Agreement in order to restate and clarify certain provisions contained therein
relating to an Acquisition of the Company.
NOW, THEREFORE, in consideration of the foregoing premises and for good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Employee and the Company hereby agree as follows (capitalized
terms not otherwise defined shall have the meanings set forth in the Agreement):
1. Amendment. Pursuant to the provisions of Section 17 of the Agreement, as of
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the date hereof, Section 2(c) is hereby deleted and replaced in its entirety as
follows:
(c) Upon the acquisition of all or substantially all of the business of the
Company by merger, sale of assets or otherwise (an "Acquisition"), the Employee
will automatically receive eighteen (18) months accelerated vesting. Any
remaining unvested Shares shall continue to vest at a quarterly rate of 5% of
the Shares originally issued. In addition, and notwithstanding the preceding,
one hundred percent (100%) of the Shares shall become Vested Shares unless the
acquiring company in such Acquisition agrees that the Purchase Option shall
continue in effect in accordance with Section 8(b) hereof and that all Shares
that are not Vested Shares shall become Vested Shares if the Employee's
employment with the Company is terminated by the Company without Cause or such
employment is terminated by the Employee for Good Reason within 12 months after
the closing of such Acquisition. For purposes hereof, "Cause" shall mean the
willful engaging by the Employee in illegal conduct or gross misconduct which is
materially injurious to the Company. "Good Reason" shall mean (i) any
diminution in the Employee's position, title or responsibilities, (ii) any
required relocation of the Employee to a principal place of business more than
35 miles from his principal place of business immediately prior to the
Acquisition, or (iii) any diminution in the Employee's annual salary from that
in effect immediately prior to the Acquisition.
2. No Other Changes. Except as expressly provided herein, all of the terms,
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conditions and provisions of the Agreement remain unaltered, valid, binding and
in full force and effect in the form existing immediately prior to the execution
and delivery of this Amendment.
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Except as expressly provided by this Amendment,
nothing herein is intended or shall be construed so as to limit or otherwise
modify any of the terms or provisions of the Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
CONVERGENT NETWORKS, INC.
By: /s/ Karl F. May
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Name: Karl F. May
Title: President
/s/ Hwang-Ruey Wang
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Hwang-Ruey Wang
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