EXHIBIT 10.3
GENESYS TELECOMMUNICATIONS LABORATORIES
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RESTRICTED STOCK PURCHASE AGREEMENT
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This Agreement is made as of the 22nd day of January, 1997 by and
between Genesys Telecommunications Laboratories, a California corporation (the
"COMPANY"), and ______________ (the "PURCHASER").
In consideration of the mutual covenants and representations herein
set forth, the Company and Purchaser agree as follows:
1. Purchase and Sale of the Shares. Subject to the terms and
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conditions of this Agreement, the Company hereby agrees to sell to Purchaser and
Purchaser agrees to purchase from the Company at the Closing 42,000 shares of
the Company's Common Stock (the "SHARES") at a price of $0.75 per share (the
"PURCHASE PRICE"), for an aggregate purchase price of $31,500 (the "AGGREGATE
PURCHASE PRICE").
2. Closing. The purchase and sale of the Shares shall occur at a
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closing (the "CLOSING") to be held at a time to be mutually agreed upon by the
Company and Purchaser. The Closing will take place at the principal office of
the Company or at such other place as shall be designated by the Company. At
the Closing, Purchaser shall deliver to the Company the Aggregate Purchase Price
payable upon delivery to the Company, at the election of Purchaser, of (i) a
check in the amount of $31,500 made payable to the Company, (ii) Purchaser's
promissory note (the "NOTE") with a face principal amount of $31,500,
substantially in the form attached hereto as Exhibit A, or a combination of
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check and Note. The Note shall be secured by a pledge of all of the Shares
purchased hereunder, pursuant to a security agreement of even date herewith to
be entered into between Purchaser and the Company (the "SECURITY AGREEMENT"), in
the form attached hereto as Exhibit B. The Company will, promptly after
execution of this Agreement, issue a stock certificate representing the Shares
registered in the name of the Purchaser.
3. Repurchase Option.
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(a) In the event that Purchaser's continuous status as an employee or
consultant of the Company (including a parent or subsidiary of the Company)
terminates for any or no reason, including resignation, involuntary termination,
death or disability (collectively, a "TERMINATION"), the Company shall upon the
date of such Termination (as reasonably fixed and determined by the Company)
(the "TERMINATION DATE") have an irrevocable right for a period of ninety (90)
days from such Termination Date to repurchase any or all of the Unreleased
Shares (as defined in Section 4 hereof) (the "REPURCHASE OPTION"), at the
Purchase Price for the Unreleased Shares being repurchased (subject to
adjustment as set forth in Section 11 hereof) (the "REPURCHASE PRICE").
(b) The Repurchase Option shall be exercised by the Company within
ninety (90) days following the Termination Date by delivering or mailing to
Purchaser or Purchaser's executor, (i) written notice in the manner provided for
in Section 15 hereof, and (ii) a check in the amount of the aggregate Repurchase
Price. Upon delivery of such notice and the payment of the aggregate Repurchase
Price as described above, the Company shall become the legal and beneficial
owner of the Shares being repurchased and all rights and interests therein or
relating thereto, and the Company shall have the right to retain and transfer to
its own name the number of Shares being repurchased by the Company.
(c) Nothing in this Agreement shall affect in any manner whatsoever
the right or power of the Company, or a parent or subsidiary of the Company, or
their respective shareholders from removing or otherwise terminating Purchaser's
status as an employee or consultant of the Company.
(d) The Company may assign its rights and delegate its duties under
this Agreement, including the Repurchase Option. Accordingly, whenever the
Company shall have the right to repurchase Shares hereunder, the Company may
designate and assign one or more employees, officers, directors or shareholders
of the Company or other persons or organizations to exercise all or a part of
the Company's Repurchase Option under this Agreement. If the Repurchase Option
is assigned by the Company and the fair market value (as of the Termination
Date) of the Unreleased Shares being repurchased, as determined in good faith by
the Board of Directors of the Company, exceeds the aggregate Repurchase Price,
and such assignee exercises the Repurchase Option, then the assignee shall pay
to the Company the difference between the fair market value of the Unreleased
Shares that are repurchased and the aggregate Repurchase Price.
4. Release of Shares From Repurchase Option.
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(a) Provided in each case that Purchaser's continuous status as an
employee or consultant of the Company has not terminated prior to such date:
the Shares subject to this Agreement shall be released from the
Repurchase Option to the extent of twenty-five percent (25%) of the Shares
subject to this Agreement as of July 17, 1997 and one-forty-eighth (1/48th) of
the Shares subject to the Agreement at the end of each month thereafter;
in addition to the foregoing, unless expressly waived by Purchaser, in
the event of (A) the sale of all or substantially all of the Company's assets or
the merger or consolidation of the Company (or any series of transactions which
results in such a merger or consolidation) with or into another company pursuant
to which the shareholders of the Company immediately prior to the closing of
such merger or consolidation (or series of transactions) own less than 50% of
the voting securities of the surviving company immediately following the closing
of such merger or consolidation (a "MERGER" and collectively with the sale of
assets an "ACQUISITION"), and (B) the acquiror fails
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to provide Purchaser with both cash compensation and operational responsibility
that is at least equal in terms of salary and benefits and operating duties,
respectively, to that which Purchaser was receiving from the Company at the time
of the Acquisition, then all of the Unreleased Shares will be released from the
Repurchase Option as of the closing date of the Acquisition and become fully
vested immediately prior to the closing of the Acquisition.
(b) Any of the Shares which have not yet been released from the
Company's Repurchase Option are referred to herein as "Unreleased Shares."
5. Representations of Purchaser. In connection with Purchaser's
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purchase of the Shares, Purchaser hereby represents and warrants to the Company
as follows:
(a) Investment Intent, Capacity to Protect Interests. Purchaser is
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purchasing the Shares solely for his own account for investment and not with a
view to or for sale in connection with any distribution of the Shares or any
portion thereof and not with any present intention of selling, offering to sell
or otherwise disposing of or distributing the Shares or any portion thereof in
any transaction other than a transaction exempt from registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT"). Purchaser also
represents that the entire legal and beneficial interest of the Shares is being
purchased, and will be held, for Purchaser's account only, and neither in whole
or in part for any other person. Purchaser either has a pre-existing business
or personal relationship with the Company or one or more of its officers,
directors or controlling persons or by reason of Purchaser's business or
financial experience or the business or financial experience of Purchaser's
professional advisors who are unaffiliated with and who are not compensated by
the Company or any affiliate or selling agent of the Company, directly or
indirectly, could be reasonably assumed to have the capacity to evaluate the
merits and risks of an investment in the Company and to protect Purchaser's own
interests in connection with this transaction.
(b) Resident. Purchaser's principal residence is as set forth on the
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signature page hereof.
(c) Information Concerning Company. Purchaser has heretofore
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discussed the Company and its plans, operations and financial condition with the
Company's officers, knows that the Company is a highly speculative business and
has heretofore received all such information as Purchaser has deemed necessary
and appropriate to enable Purchaser to evaluate the financial risk inherent in
making an investment in the Shares, and Purchaser has received satisfactory and
complete information concerning the business and financial condition of the
Company in response to all inquiries in respect thereof.
(d) Economic Risk. Purchaser realizes that the purchase of the Shares
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will be a highly speculative investment and involves a high degree of risk, and
Purchaser is able, without impairing his financial condition, to hold the Shares
for an indefinite period of time and to suffer a complete loss on Purchaser's
investment.
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(e) Restricted Securities. Purchaser understands and acknowledges
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that:
(i) The sale of the Shares has not been registered under the
Securities Act, and the Shares must be held indefinitely unless subsequently
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registered under the Securities Act or an exemption from such registration is
available (such as Rule 144 or the resale provisions of Rule 701 under the
Securities Act) and the Company is under no obligation to register the Shares;
(ii) The share certificate representing the Shares will be stamped
with the legends specified in Section 9 hereof; and
(iii) The Company will make a notation in its records of the
aforementioned restrictions on transfer and legends.
(f) Disposition under the Securities Act. Purchaser understands that
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the Shares are restricted securities within the meaning of Rule 144 promulgated
under the Securities Act; that the exemption from registration under Rule 144
will not be available in any event for at least two years from the date of
purchase and payment of the Shares (unless Rule 701 promulgated under the
Securities Act is available), and even then will not be available unless (i) a
public trading market then exists for the Common Stock of the Company, (ii)
adequate information concerning the Company is then available to the public, and
(iii) other terms and conditions of Rule 144 are complied with; and that any
sale of the Shares may be made only in limited amounts in accordance with such
terms and conditions. Purchaser further understands that the resale provisions
of Rule 701, if available, will not apply until 90 days after the Company
becomes subject to the reporting obligations under the Securities Exchange Act
of 1934 (the "EXCHANGE ACT"). There can be no assurance that the requirements
of Rule 144 or Rule 701 will be met, or that the stock will ever be saleable.
(g) Further Limitations on Disposition. Without in any way limiting
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the representations set forth above, Purchaser further agrees that he shall in
no event make any disposition of all or any portion of the Shares unless and
until:
(i) (A) There is then in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with said Registration Statement; (B) the resale provisions of
Rule 701 or Rule 144 are available in the opinion of counsel to the Company; or
(C)(1) Purchaser shall have notified the Company of the proposed disposition and
shall have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, (2) Purchaser shall have furnished the
Company with an opinion of Purchaser's counsel to the effect that such
disposition will not require registration of such Shares under the Securities
Act, and (3) such opinion of Purchaser's counsel shall have been
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concurred with by counsel for the Company and the Company shall have advised
Purchaser of such concurrence; and,
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(ii) The Shares proposed to be transferred shall no longer be subject
to the Repurchase Option set forth in Section 3 hereof and Purchaser shall have
complied with the right of first refusal set forth in Section 6 hereof and the
"lock-up" provisions set forth in Section 10 hereof.
(h) Valuation of Common Stock. Purchaser understands that the Shares
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have been valued by the Board of Directors and that the Company believes this
valuation represents a fair attempt at reaching an accurate appraisal of their
worth; Purchaser understands, however, that the Company can give no assurances
that such price is in fact the fair market value of the Shares and that it is
possible that, with the benefit of hindsight, the Internal Revenue Service would
successfully assert that the value of the Shares on the date of purchase is
substantially greater than so determined.
If the Internal Revenue Service were to succeed in a tax determination
that the Shares received had value greater than that upon which the transaction
was based, the additional value would constitute ordinary income as of the date
of his receipt. The additional taxes (and interest) due would be payable by
Purchaser, and there is no provision for the Company to reimburse him for that
tax liability, and Purchaser assumes all responsibility for such potential tax
liability. In the event that such additional value would represent more than 25
percent of Purchaser's gross income for the year in which the value of the
Shares was taxable, the Internal Revenue Service would have six years from the
due date for filing the return (or the actual filing date of the return if filed
thereafter) within which to assess Purchaser the additional tax and interest
which would then be due.
The Company would have the benefit, in any such transaction, if a
determination was made prior to the three year statute of limitations period
affecting the Company, of an increase in its deduction for compensation paid,
which would offset its operating profits, or, if not profitable, would create
net operating loss carry forward arising from operations in that year.
(i) Section 83(b) Election. Purchaser understands that Section 83 of
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the Internal Revenue Code of 1986 (the "CODE"), taxes as ordinary income the
difference between the amount paid for the Shares and the fair market value of
the Shares as of the date any restrictions on the Shares lapse. In this
context, "restriction" means the right of the Company to buy back the Shares
pursuant to the Repurchase Option. Purchaser understands that he may elect to
be taxed at the time the Shares are purchased rather than when and as the
Repurchase Option expires by filing an election under Section 83(b) of the Code
with the Internal Revenue Service within 30 days from the date of purchase.
Even if the fair market value of the Shares equals the amount paid for the
Shares, the election must be made to avoid adverse tax consequences in the
future. The form for making this election is attached as Exhibit C hereto.
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Purchaser understands that failure to make this
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filing timely will result in the recognition of ordinary income by Purchaser, as
the Repurchase Option lapses, on the difference between the purchase price and
the fair market value of the Shares at the time such restrictions lapse.
(j) PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE RESPONSIBILITY
AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF
PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON
PURCHASER'S BEHALF.
6. Company's Right of First Refusal. Before any Shares held by
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Purchaser or any transferee (either being sometimes referred to herein as the
"HOLDER") may be sold or otherwise transferred (including transfer by gift or
operation of law), the Company or its assignee(s) shall have a right of first
refusal to purchase the Shares on the terms and conditions set forth in this
Section 6 (the "RIGHT OF FIRST REFUSAL").
(a) Notice of Proposed Transfer. The Holder of the Shares shall
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deliver to the Company a written notice (the "NOTICE") stating: (i) the Holder's
bona fide intention to sell or otherwise transfer such Shares; (ii) the name of
each proposed purchaser or other transferee (a "PROPOSED TRANSFEREE"); (iii) the
number of Shares to be transferred to each Proposed Transferee; and (iv) the
bona fide cash price per share or other consideration for which the Holder
proposes to transfer the Shares (the "OFFERED PRICE"), and the Holder shall
offer the Shares at the Offered Price to the Company or its assignee(s).
(b) Exercise of Right of First Refusal. At any time within 30 days
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after receipt of the Notice, the Company and/or its assignee(s) may, by giving
written notice to the Holder, elect to purchase all or any portion of the Shares
proposed to be transferred to any one or more of the Proposed Transferees, at
the purchase price determined in accordance with subsection (c) below.
(c) Purchase Price. The purchase price for the Shares purchased by
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the Company or its assignee(s) shall be the Offered Price, or such other amount
agreed to in writing by the Company and the Purchaser (the "COMPANY PURCHASE
PRICE"). If the Offered Price includes consideration other than cash, the cash
equivalent value of the non-cash consideration shall be determined by the Board
of Directors of the Company in good faith.
(d) Payment. Payment of the Company Purchase Price shall be made in
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cash (or such other form of consideration mutually agreed to by the parties)
within thirty (30) days after receipt of the Notice.
(e) Holder's Right to Transfer. If all of the Shares proposed in the
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Notice to be transferred are not purchased by the Company and/or its assignee(s)
as provided in this Section 6, then the Holder may sell or otherwise transfer
such Shares to the
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Proposed Transferee(s) at the Offered Price or at a higher price, provided that
such sale or other transfer is consummated within ninety (90) days after the
date of the Notice and provided further that any such sale or other transfer is
effected in accordance with any applicable securities laws and the Proposed
Transferee agrees in writing that the provisions of Sections 5 and 6 of this
Agreement shall continue to apply to the Shares that are transferred to such
Proposed Transferee. If the Shares described in the Notice are not transferred
to the Proposed Transferee(s) within such ninety (90) day period, a new Notice
shall be given to the Company, and the Company and/or its assignees shall again
be offered the Right of First Refusal before any Shares held by the Holder may
be sold or otherwise transferred.
(f) Exception for Certain Family Transfers. Anything to the contrary
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contained in this Section 6 notwithstanding, the transfer of any or all of the
Shares during Purchaser's lifetime or on Purchaser's death by will or intestacy
to Purchaser's immediate family or a trust for the benefit of Purchaser or
Purchaser's immediate family shall be exempt from the provisions of this Section
6. "Immediate family" as used herein shall mean spouse, lineal descendant or
antecedent, father, mother, brother or sister. In such case, the transferee or
other recipient shall receive and hold the Shares so transferred subject to the
provisions of this Section 6, and there shall be no further transfer of such
Shares except in accordance with the terms of this Section 6.
(g) Termination of Right of First Refusal. The Right of First Refusal
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shall terminate upon the earlier of the closing of (i) the first sale of Common
Stock of the Company to the general public pursuant to a registration statement
filed with and declared effective by the Securities and Exchange Commission
under the Securities Act, (ii) a sale of all or substantially all the assets of
the Company and (iii) a Merger.
(h) Application of Repurchase Option. Nothing contained in this
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Section 6 shall serve to allow the transfer by Purchaser of any Unreleased
Shares.
7. Rights as Shareholder. Subject to the terms and conditions of
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this Agreement, Purchaser shall have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Purchaser
delivers full payment for the Shares until such time as Purchaser disposes of
the Shares or the Company and/or its assignee(s) exercises the Repurchase Option
hereunder. Upon such exercise, Purchaser shall have no further rights as a
holder of the Shares so purchased except the right to receive payment for the
Shares so purchased in accordance with the provisions of this Agreement, and
Purchaser shall forthwith cause the certificate(s) evidencing the Shares so
purchased to be surrendered to the Company for transfer or cancellation.
8. Escrow. As security for the faithful performance of this
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Agreement, Purchaser agrees, immediately upon receipt of the certificate(s)
evidencing the Shares, to deliver such certificate(s), together with a stock
power in the form of Exhibit D attached hereto, executed by Purchaser and by
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Purchaser's spouse, if any (with the date and number
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of Shares left blank), to the Secretary of the Company or its designee ("ESCROW
AGENT"); said documents are to be held by the Escrow Agent pursuant to the Joint
Escrow Instructions of the Company and Purchaser set forth in Exhibit E attached
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hereto and incorporated by this reference, which instructions shall also be
delivered to the Escrow Agent after the Closing.
9. Restrictive Legends and Stop-Transfer Orders.
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(a) Legends. Purchaser understands and agrees that the Company shall
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cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN
THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER IS IN
COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, A MARKET STANDOFF PROVISION AND A RIGHT OF
REPURCHASE HELD BY THE ISSUER OR ITS ASSIGNEE(S), AS SET FORTH IN THE
RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND
MARKET STANDOFF PROVISION ARE BINDING ON TRANSFEREES OF THESE SHARES.
(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.
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10. Market Standoff Agreement. Purchaser hereby agrees that if so
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requested by the Company or any representative of the underwriters in connection
with any registration of the offering of any equity securities of the Company
under the Securities Act, Purchaser shall not sell or otherwise transfer any
Shares or other securities of the Company during the period of time following
the effective date of a registration statement of the Company filed under the
Securities Act that is agreed to by the Company and such representatives of the
underwriters as the lock-up period for the holders of the Company's Common
Stock. The Company may impose stop-transfer instructions with respect to
securities subject to the foregoing restrictions until the end of such period of
time.
11. Adjustment for Stock Split. 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 split, stock dividend or other
change in the Shares which may be made by the Company after the date of this
Agreement.
12. Successors and Assigns. The Company may assign any of its rights
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under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Purchaser and its heirs, executors, administrators, successors and assigns.
13. Interpretation. Any dispute regarding the interpretation of this
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Agreement shall be submitted by Purchaser or by the Company forthwith to the
Company's Board of Directors which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board shall be final and
binding on the Company and on Purchaser.
14. Governing Law; Severability. This Agreement shall be governed by
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and construed in accordance with the laws of the State of California, excluding
that body of law pertaining to conflicts of law. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
15. Notices. All notices and other communications required or
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permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (a) five (5) days after deposit with
the U.S. Postal Service, if delivered by first class mail, postage prepaid, (b)
upon delivery, if delivered by hand, or (c) one business day after the business
day of deposit with Federal Express or similar overnight courier, freight
prepaid, and shall be addressed (i) if to Purchaser, at Purchaser's address as
set forth beneath Purchaser's signature to this Agreement, or at such other
address as Purchaser shall have furnished to the Company in writing, (ii) if to
the Company, to Genesys Telecommunications Laboratories, with copy to Brobeck,
Phleger & Harrison LLP, Two Embarcadero Place, 2200 Geng Road, Palo Alto,
California 94303-0913, Attention: Jacqueline E. Cowden, or at such other address
as the Company shall have furnished to
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Purchaser, or (iii) if to the Escrow Agent, to Jacqueline E. Cowden, Two
Embarcadero Place, 2200 Geng Road, Palo Alto, California 94303-0913.
16. Further Instruments. The parties agree to execute such further
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instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
17. Entire Agreement. This Agreement constitutes the entire
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agreement of the parties and supersedes in its entirety all prior undertakings
and agreements of the Company and Purchaser with respect to the subject matter
hereof.
18. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
PURCHASER
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Address:
GENESYS TELECOMMUNICATIONS LABORATORIES, a
California corporation
By:
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Gregory Shenkman, President
Address: 1155 Market Street, 11th Floor
San Francisco, California 94103
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CONSENT OF SPOUSE
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The undersigned, ______________, spouse of ___________, has read and
hereby approves the foregoing Agreement. In consideration of the Company's
granting my spouse the right to purchase the Shares as set forth in the
Agreement, the undersigned hereby agrees to be irrevocably bound by the
Agreement and further agrees that any community property interest shall be
similarly bound by the Agreement. I hereby appoint my spouse as my attorney-in-
fact with respect to any amendment or exercise of any right under the Agreement.
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FULL RECOURSE, SECURED PROMISSORY NOTE
$31,500.00 San Francisco, California January 22, 1997
FOR VALUE RECEIVED, _____________ promises to pay to Genesys
Telecommunications Laboratories, a California corporation (the "Corporation"),
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or order, the principal sum of Thirty-One Thousand Five Hundred Dollars
($31,500.00), together with interest on the unpaid principal balance from the
date hereof at the rate of six and one-half percent (6.5%) per annum, compounded
annually.
Principal and accrued interest hereunder shall be payable in lawful
money of the United States of America.
The unpaid balance of principal and interest subject to this Note
shall be due and payable upon the earlier of (i) January 22, 2002 and (ii) the
sale of shares of Common Stock of the Corporation by the Purchaser; provided,
however, in the event that the undersigned's continuous status as an employee or
consultant should terminate for any reason, this Note shall, at the option of
the Company, be accelerated, and the whole unpaid balance of principal and
accrued interest subject to this Note shall be due and payable within ninety
(90) days of the date of such termination. Should any action be instituted for
the collection of this Note, the reasonable costs of collection of the holder,
including attorneys' fees and expenses, shall be paid by the undersigned.
The Corporation may at any time prepay all or any portion of the
principal or interest owing hereunder.
This Note is subject to the terms of (i) a Restricted Stock Purchase
Agreement dated January 22, 1997 (the "Purchase Agreement") and (ii) a Security
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Agreement of even date January 22, 1997, each between the Corporation and the
Purchaser. Capitalized terms used herein, unless otherwise defined, shall have
the meanings assigned to them in the Purchase Agreement. This Note is secured
by a pledge of Common Stock under the terms of the Security Agreement and is
subject to all the provisions thereof.
This Note shall be with full recourse against the undersigned. In the
event of default, the initial recourse of the holder of the note for payment of
the undersigned's obligations hereunder (including principal, interest and costs
of collection) shall be to proceed against the collateral securing the Note
pursuant to the Security Agreement. The undersigned waives notice of default,
presentation or demand for payment and protest and notice of nonpayment or
dishonor.
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This Note shall be governed by the laws of the State of California as they apply
to contracts entered into and wholly to be performed within such state.
PURCHASER
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EXHIBIT B
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SECURITY AGREEMENT
This Security Agreement is made as of January 22, 1997 among Genesys
Telecommunications Laboratories, a California corporation ("Pledgee"),
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________________ ("Pledgor") and _____________________ of Brobeck, Phleger &
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Harrison LLP (the "Escrow Agent").
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WHEREAS, Pledgor has elected to purchase a total of 42,000 Shares of
Common Stock of Pledgee (the "Shares") pursuant to a Restricted Stock Purchase
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Agreement dated January 22, 1997 (the "Purchase Agreement") for an aggregate
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purchaser price of $31,500 (the "Purchase Price"). Under the terms of such
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Purchase Agreement, Pledgor has further elected to pay $31,500 of the Purchase
Price with Pledgor's promissory note dated January 22, 1997 (the "Note").
Capitalized terms used herein, unless otherwise defined, shall have the meanings
assigned to them in the Purchase Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Creation and Description of Security Interest. In consideration
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of the transfer of the Shares to Pledgor under the Purchase Agreement, Pledgor,
pursuant to the California Commercial Code, hereby pledges the Shares (herein
sometimes referred to as the "Collateral"). The Shares are represented by
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certificate number __________, duly endorsed in blank or with executed Stock
powers, and Pledgor herewith delivers said certificate of the Escrow Agent
pursuant to the Purchase Agreement, who shall hold said certificate subject to
the terms and conditions of this Security Agreement.
(a) The pledged Stock (together with an executed blank Stock
assignment for use in transferring all or a portion of the Shares to Pledgee if,
as and when required pursuant to this Security Agreement) shall be held by the
Escrow Agent as security for the repayment of the Note, and any extensions or
renewals thereof, to be executed by Pledgor pursuant to the terms of the
Purchase Agreement, and the Escrow Agent shall not encumber or dispose of such
Shares except in accordance with the provisions of this Security Agreement.
2. Pledgor's Representations and Covenants. To induce Pledgee to
---------------------------------------
enter into this Security Agreement, Pledgor represents and covenants to Pledgee,
his successors and assigns, as follows:
(a) Payment of Indebtedness. Pledgor will pay the principal sum of
-----------------------
the Note secured hereby, together with interest thereon, at the time and in the
manner provided in the Note.
14
(b) Encumbrances. The Shares are free of all other encumbrances,
------------
defenses and liens, and Pledgor will not further encumber the Shares without the
prior written consent of Pledgee.
(c) Margin Regulations. In the event that Pledgee's Common Stock is
------------------
now or later becomes margin-listed by the Federal Reserve Board and Pledgee is
classified as a "lender" within the meaning of the regulations under Part 207 of
Title 12 of the Code of Federal Regulations ("Regulation G"), Pledgor agrees to
------------
cooperate with Pledgee in making any amendments to the Note or providing any
additional collateral as may be necessary to comply with such regulations.
3. Voting Rights. During the term of this pledge and so long as all
-------------
payments of principal and interest are made as they become due under the terms
of the Note, Pledgor shall have the right to vote all of the Shares pledged
hereunder.
4. Options and Rights. In the event that, during the term of this
------------------
pledge, subscription options or other rights or options shall be issued in
connection with the pledged Shares, such rights, options and options shall be
the property of Pledgor and, if exercised by Pledgor, all new Stock or other
securities so acquired by Pledgor in connection with the pledged Shares then
held by the Escrow Agent shall be immediately delivered to Escrow Agent to be
held under the terms of this Security Agreement in the same manner as the
pledged Shares.
5. Default. Pledgor shall be deemed to be in default of the Note
-------
and of this Security Agreement in the event:
(a) Payment of principal or interest on the Note shall be
delinquent for a period of 30 days or more; or
(b) Pledgor fails to perform any of the covenants set forth in the
Purchase Agreement, or contained in this Security Agreement, for a period of 30
days after written notice thereof from Pledgee.
(c) In the case of an event of default, as set forth above, Pledgee
shall have the right to accelerate payment of the Note upon notice to Pledgor.
Pledgee's initial recourse in such an event, shall be to proceed against the
Collateral held pursuant to this Security Agreement, but shall not be limited to
such Collateral.
6. Release of Collateral. Subject to any applicable contrary rules
---------------------
under Regulation G, there shall be released from this pledge a portion of the
pledged Shares held by the Escrow Agent hereunder upon payments of the principal
of the Note. The number of the pledged Shares which shall be released shall be
that number of full Shares which bears the same proportion to the initial number
of Shares pledged hereunder as the payment of principal bears to the initial
full principal amount of the Note.
15
7. Withdrawal or Substitution of Collateral. Pledgor shall not sell,
----------------------------------------
withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
8. Term. The within pledge of Shares shall continue until the
----
payment of all indebtedness secured hereby, at which time the remaining pledged
Stock shall be promptly delivered to Pledgor, subject to the provisions for
prior release of a portion of the Collateral as provided in paragraph 6 above.
9. Insolvency. Pledgor agrees that if a bankruptcy or insolvency
----------
proceeding is instituted by or against him, or if a receiver is appointed for
the property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due and
payable, and Pledgee may proceed as provided in the case of default.
10. Escrow Agent Liability. In the absence of willful negligence,
----------------------
the Escrow Agent shall not be liable to any party for any of his acts, or
omissions to act, as the Escrow Agent.
11. Invalidity of Particular Provisions. The parties hereto agree
-----------------------------------
that the enforceability or invalidity of any provision or provisions of this
Security Agreement shall not render any other provision or provisions herein
contained unenforceable or invalid.
12. Successors or Assigns. The parties hereto agree that all of the
---------------------
terms of this Security Agreement shall be binding on their respective successors
and assigns, and that the term "Pledgor" and the term "Pledgee" as used herein
------- -------
shall be deemed to include, for all purposes, the respective designees,
successors, assigns, heirs, executors and administrators.
13. Notices. All notices and other communications required or
-------
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (a) four (4) days after deposit with
the U.S. Postal Service, if delivered by first class mail, postage prepaid, (b)
upon delivery, if delivered by hand, or (c) one business day after the business
day of deposit with Federal Express or similar overnight courier, freight
prepaid, and shall be addressed (i) if to Pledgor, at Pledgor's address as set
forth beneath Pledgor's signature to this Security Agreement, or at such other
address as Pledgor shall have furnished to Pledgee in writing, (ii) if to
Pledgee, to Genesys Telecommunications Laboratories, 1155 Market Street, 11th
Floor, San Francisco, California 94103, Attention: President and with copy to
Brobeck, Phleger & Harrison LLP, Two Embarcadero Place, 2200 Geng Road, Palo
Alto, CA 94303, Attention: Jacqueline E. Cowden, Esq., or at such other address
as Pledgee shall have furnished to Pledgor or (iii) if to the Escrow Agent, to
Jacqueline E. Cowden, c/o Brobeck, Phleger & Harrison LLP, Two Embarcadero
Place, 2200 Geng Road, Palo Alto, CA 94303.
16
14. Governing Law. This Security Agreement shall be interpreted and
-------------
governed under the laws of the State of California as they apply to contracts
entered into and wholly to be performed within such state.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"PLEDGOR"
-----------------------------------------
---------------------
Address:
"PLEDGEE"
GENESYS TELECOMMUNICATION
LABORATORIES, a California corporation
By:
--------------------------------------
Gregory Shenkman, President
"ESCROW AGENT"
-----------------------------------------
Jackie E. Cowden
17
EXHIBIT D
---------
STOCK POWER AND ASSIGNMENT
--------------------------
SEPARATE FROM CERTIFICATE
-------------------------
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock
Purchase Agreement dated as of January 22, 1997, the undersigned hereby sells,
assigns and transfers unto ____________________, ____________________
(____________________) shares of Common Stock of Genesys Telecommunications
Laboratories, a California corporation, standing in the undersigned's name on
the books of said corporation represented by certificate number
____________________ delivered herewith, and does hereby irrevocably constitute
and appoint ____________________ as attorney-in-fact, with full power of
substitution, to transfer said stock on the books of said corporation.
Dated: ____________________, 19__
-------------------------------------------
(Signature)
-------------------------------------------
(Please Print Name)
-------------------------------------------
(Spouse's Signature, if any)
-------------------------------------------
(Please Print Name)
This Assignment Separate From Certificate was executed in conjunction with the
terms of a Restricted Stock Purchase Agreement between the above assignor and
Genesys Telecommunications Laboratories dated as of January 22, 1997.
INSTRUCTION: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
18
EXHIBIT D
---------
STOCK POWER AND ASSIGNMENT
--------------------------
SEPARATE FROM CERTIFICATE
-------------------------
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock
Purchase Agreement dated as of January 22, 1997, the undersigned hereby sells,
assigns and transfers unto ____________________, ____________________
(____________________) shares of Common Stock of Genesys Telecommunications
Laboratories, a California corporation, standing in the undersigned's name on
the books of said corporation represented by certificate number __________
delivered herewith, and does hereby irrevocably constitute and appoint Wilson
Sonsini Goodrich & Rosati as attorney-in-fact, with full power of substitution,
to transfer said stock on the books of said corporation.
Dated: ____________________, 19__
-------------------------------------------
(Signature)
-------------------------------------------
(Please Print Name)
-------------------------------------------
(Spouse's Signature, if any)
-------------------------------------------
(Please Print Name)
This Assignment Separate From Certificate was executed in conjunction with the
terms of a Restricted Stock Purchase Agreement between the above assignor and
Genesys Telecommunications Laboratories dated as of January 22, 1997.
INSTRUCTION: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
19
EXHIBIT E
---------
JOINT ESCROW INSTRUCTIONS
-------------------------
January 22, 1997
Jacqueline E. Cowden
c/o Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, CA 94303
Dear Ms. Cowden:
As Escrow Agent for both Genesys Telecommunications Laboratories, a
California corporation (the "COMPANY"), and Michael McCloskey ("PURCHASER"), you
are hereby authorized and directed to hold the documents delivered to you
pursuant to the terms of that certain Restricted Stock Purchase Agreement (the
"AGREEMENT"), dated as of January 22, 1997, to which a copy of these Joint
Escrow Instructions is attached, in accordance with the following instructions:
1. In the event that 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
Purchaser 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. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
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 same, together with the certificate
evidencing the shares of stock to be transferred, to the Company against the
simultaneous delivery to you of the purchase price (by check or such other form
of consideration mutually agreed to by the parties) for the number of shares of
stock being purchased pursuant to the exercise of the Repurchase Option.
3. Purchaser 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 said shares as defined in the Agreement.
Purchaser 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 transaction herein contemplated, including but
not limited to the filing with the Department of Corporations of the State of
California of an
20
Application for Consent to Transfer Securities Subject to Legend or Escrow
Condition Pursuant to Section 25151 of the California Corporate Securities Law
of 1968. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a shareholder of the Company while the
stock is held by you.
4. Upon written request of Purchaser after each successive one-year
period from the date of the Agreement, unless the Repurchase Option has been
exercised, you will deliver to Purchaser a certificate or certificates
representing so many shares of stock as are not then subject to the Repurchase
Option. Ninety days after cessation of Purchaser's service as an employee or
consultant of the Company, you will deliver to Purchaser a certificate or
certificates representing the aggregate number of shares sold and issued
pursuant to the Agreement and not purchased by the Company or its assignees
pursuant to exercise of the Repurchase Option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of same to Purchaser and shall be discharged of all
further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. 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 Purchaser while acting in
good faith and in the exercise of your own good judgment, and any act done or
omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
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.
9. 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.
21
10. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. 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.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
13. 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.
14. 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, 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 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.
15. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or four (4) days
following deposit in the United States Post Office, by registered or certified
mail with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses, or at such other addresses as a
party may designate by written notice to each of the other parties hereto.
COMPANY: Genesys Telecommunications Laboratories
1155 Market Street, 11th Floor
San Francisco, California 94103
PURCHASER:
22
ESCROW AGENT: Jacqueline E. Cowden
c/o Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, CA 94303
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.
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,
GENESYS TELECOMMUNICATIONS
LABORATORIES
a California corporation
By:
----------------------------------------
Gregory Shenkman, President
PURCHASER:
-------------------------------------------
ESCROW AGENT:
- ----------------------------------------
Jacqueline E. Cowden
23