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EXHIBIT 10.13
AMENDMENT TO RESTRICTED STOCK PURCHASE AGREEMENT
THIS AMENDMENT to Founders Restricted Stock Purchase Agreement
(this "Agreement") is made and entered into as of September 1, 1999 (the
"EFFECTIVE DATE") by and between EPS Solutions Corporation, a Delaware
Corporation (the "COMPANY") and James F. Holden (the "PURCHASER") to amend that
certain Restricted Stock Purchase Agreement by and between the Company and the
Purchaser dated as of March 19, 1999 (the "RESTRICTED STOCK PURCHASE
AGREEMENT"). All capitalized terms not otherwise defined herein have the meaning
ascribed to them in the Restricted Stock Purchase Agreement.
A. The Purchaser continues to be employed by the Company's wholly
owned subsidiary Enterprise Profit Solutions Corporation, a Delaware corporation
("EPS" or the "EMPLOYER") and has executed that certain Employment Agreement
with the Employer as of March 19, 1999 (the "EMPLOYMENT AGREEMENT").
B. The Company and Purchaser desire to amend the Restricted Stock
Purchase Agreement to increase the number of shares of the Series A Common Stock
of the Company, par value $0.001 per share (the "COMMON STOCK") covered by the
Restricted Stock Purchase Agreement by 26,072 shares(the "NEW SHARES") and to
set forth the vesting provisions applicable to the New Shares.
C. The Company and the Purchaser intend that the New Shares shall
be subject to all restrictions and provisions set forth in the Restricted Stock
Purchase Agreement, together with all schedules and exhibits thereto.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants hereinafter set forth, the Company and the Purchaser hereby
agree as follows:
1. AMENDMENT TO SCHEDULES 1.1 AND 4 OF THE RESTRICTED STOCK PURCHASE AGREEMENT.
Subject to Section 3 hereof, Schedule 1.1 and Schedule 4 to the Restricted Stock
Purchase Agreement are hereby amended and superseded by amended Schedule 1.1 and
amended Schedule 4, set forth below, to include the New Shares and the
additional cash payment and note amount referenced in Section 3.2 hereof. The
New Shares are in addition to and cumulative with the shares purchased pursuant
to the Restricted Stock Purchase Agreement. All shares of Common Stock set forth
on amended Schedule 1.1 (the "SHARES") are subject to all terms and conditions
of the Restricted Stock Purchase Agreement as amended hereby, together with all
schedules and exhibits thereto and transaction documents executed thereunder,
including, without limitation, the Stockholder Agreement and the Voting
Agreement, as amended. For clarification, the term "Shares" as used in this
Agreement and the Restricted Stock Purchase Agreement include the shares
originally purchased pursuant to the Restricted Stock Purchase Agreement and the
New Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents and
warrants to the Company and its officers, directors and agents as follows:
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2.1 SECURITIES MATTERS.
(a) The Purchaser understands that (i) neither the Shares nor the
offer and sale thereof are registered or qualified under the Securities Act of
1933, as amended (the "SECURITIES ACT") or any state securities or "Blue Sky"
laws, on the ground that the sale provided for in this Agreement and the
issuance of securities hereunder is exempt from registration and qualification
under Sections 4(2) and 18 of the Securities Act, and (ii) the Company's
reliance on such exemptions is predicted on the Purchaser's representations set
forth herein.
(b) The Purchaser acknowledges that an investment in the Company
involves an extremely high degree of risk, lack of liquidity and substantial
restrictions on transferability and that the Purchaser may lose the Purchaser's
entire investment in the Shares.
(c) The Company has made available to the Purchaser or the
Purchaser's advisors the opportunity to obtain information to evaluate the
merits and risks of the purchase of the Shares, and the Purchaser has received
all information requested from the Company. The Purchaser has had an opportunity
to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Shares and the business, properties, plans,
prospects, and financial condition of the Company and to obtain such additional
information as the Purchaser has deemed appropriate for purposes of investing in
the Shares pursuant to this Agreement.
(d) The Shares to be acquired by the Purchaser hereunder will be
acquired for the Purchaser's own account, for investment purposes, not as a
nominee or agent, and not with a view to or for sale in connection with any
distribution of the Shares in violation of applicable securities laws.
(e) The Purchaser understands that no federal or state agency has
passed upon the Shares or made any finding or determination as to the fairness
of the investment in the Shares.
(f) The Purchaser, personally or through advisors, has expertise
in evaluating and investing in private placement transactions of securities of
companies in a similar stage of development to the Company and has sufficient
knowledge and experience in financial and business matters to assess the
relative merits and risks of an investment in the Shares. In connection with the
purchase of the Shares, the Purchaser has relied solely upon independent
investigations made by the Purchaser, and has consulted the Purchaser's own
investment advisors, counsel and accountants. The Purchaser has adequate means
of providing for current needs and personal contingencies, and has no need for
liquidity and can sustain a complete loss of the investment in the Shares.
(g) The Purchaser is an "ACCREDITED INVESTOR" as defined in Rule
501(a) under the Securities Act and has documented his or her accredited status
by delivery to the Company of a completed questionnaire in the form of Exhibit A
hereto attesting thereto (the "ACCREDITED INVESTOR QUESTIONNAIRE").
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(h) The Purchaser has not received any general solicitation or
general advertising concerning the Shares, nor is the Purchaser aware of any
such solicitation or advertising.
2.2 REVOCATION, CANCELLATION. The Purchaser acknowledges that the
Purchaser shall not have any right to cancel, terminate or revoke this
Agreement, or rescind purchase of the Shares, or return the Shares for a refund.
2.3 THE COMPANY AND THE CONSOLIDATION TRANSACTIONS.
(a) The Purchaser is aware that:
(i) The Company has recently been organized and has limited
financial and operating history.
(ii) There can be no assurance that the Company will acquire
additional companies or be successful in accomplishing the purpose for which it
was formed or that it will ever be profitable. No assurance can be given
regarding (A) whether the companies already acquired by the Company can be
successfully integrated and operated, or (B) what companies will ultimately be
acquired by the Company.
(iii) No assurances can be given that an initial public offering
("IPO") of the Company's securities will occur. If an IPO does occur, no
assurances can be given as to timing of the IPO, whether the Purchaser will be
able to participate, or the price at which any shares of Common Stock would be
sold.
(iv) No assurances can be given as to the ultimate value of the
Common Stock or the Shares or the liquidity thereof.
(v) All decisions regarding the Company's management and
operations and IPO will be made by the Company's management, and certain
individuals involved in planning the formation of the Company and managing the
business of the Company will have the right to vote the Shares pursuant to the
Voting Agreement.
(b) The Purchaser acknowledges that no assurances have been made to the
Purchaser with respect to any of the foregoing and no representations, oral or
written, have been made to the Purchaser by the Company or any of its employees,
representatives or agents concerning the Shares, their potential value or the
prospects of the Company, except as set forth herein.
(c) The proceeds from the sale of the Shares are intended to be used by
the Company for general and administrative expenses and working capital. The
proceeds from such sales may be exhausted notwithstanding failure of the Company
to achieve its objectives.
2.4 ENFORCEABILITY OF TRANSACTION DOCUMENTS. The Restricted Stock
Purchase Agreement, this amendment thereto and all other documents delivered in
connection with the Restricted Stock Purchaser Agreement and this amendment
thereto (collectively, the
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"TRANSACTION DOCUMENTS") have been (or upon execution and delivery will have
been) duly executed and delivered by the Purchaser, and (assuming due execution
and delivery by the other parties thereto) constitute (or upon execution by the
Purchaser will constitute) legal, valid and binding obligations of the
Purchaser, except as such enforceability may be limited by general principles of
equity and bankruptcy, insolvency, reorganization and moratorium and other
similar laws relating to creditors' rights.
2.5 BROKERS. No broker, finder, investment banker, or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
2.6 TAX MATTERS. The Purchaser has received tax advice from the
Purchaser's own advisors and has not received, and is not relying upon, any tax
representations or advice from the Company or any representative of the Company.
2.7 SUMMARY OF CERTAIN CONSIDERATIONS. The Purchaser acknowledges
receipt and understanding of the Summary of Certain Considerations attached
hereto as Exhibit B.
2.8 ACCURACY OF INFORMATION. No representation or warranty made by the
Purchaser contained in this Agreement or in any other Transaction Document
contains or will contain an untrue statement of a material fact or omits or will
omit to state a material fact required to be stated herein or therein or
necessary to make the statements and facts contained herein or therein not
materially false or misleading.
3. CONCURRENT DELIVERIES.
3.1 DELIVERIES BY THE COMPANY. Concurrent herewith, the Company shall
deliver to the Purchaser a photocopy of the stock certificates for the New
Shares issued in the Purchaser's name.
3.2 DELIVERIES BY THE PURCHASER.
(a) The Cash Payment. The purchase price for the New Shares is $2.50 per
share. Concurrent herewith the Purchaser shall pay to the Company $26.08 in
cash, representing $0.001 per Share for the New Shares.
(b) The Note. The obligation of the Purchaser to pay the remainder of
the Purchase Price for the New Shares is evidenced by a secured promissory note
of the Purchaser in the amount of $65,154, in the form attached hereto as
Exhibit C, which together with that certain secured promissory note of the
Purchaser in the amount of $509,463.49, dated December 14, 1998 (collectively,
the "NOTES"), represents payment of the non-cash Purchase Price for all the
Shares. The Notes are secured by a pledge of the Shares made pursuant to Section
5 of the Notes.
4. SECTION 83(b) ELECTION. The Purchaser may make an election pursuant
to Section 83(b) of the Internal Revenue Code, or comparable provisions of any
state tax law, to include in the Purchaser's gross income the amount by which
the fair market value of the Shares the
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Purchaser acquires exceeds the price paid therefor only if, prior to making any
such election, the Purchaser (a) notifies the Company of the Purchaser's
intention to make such election, by delivering to the Company a copy of the
fully-executed Section 83(b) Election Form attached hereto as Exhibit D, and (b)
pays to the Company an amount sufficient to satisfy any taxes or other amounts
required by any Governmental Entity to be withheld or paid over to such
Governmental Entity for the Purchaser's account, or otherwise makes arrangements
satisfactory to the Company for the payment of such amounts through withholding
or otherwise. Purchaser hereby acknowledges that (a) any information provided to
the Purchaser by the Company in connection with making an election pursuant to
Section 83(b) has been provided as a courtesy, (b) the Purchaser is fully
responsible for making elections pursuant to Section 83(b), (c) the Company has
not rendered any tax advice to the Purchaser in connection with making such an
election, and (d) the Purchaser should consult with the Purchaser's independent
tax advisers on such matters.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
amendment to the Restricted Stock Purchase Agreement as of the date first above
written.
EPS SOLUTIONS CORPORATION PURCHASER
By: /s/ MARK C. COLEMAN By: /s/ JAMES F. HOLDEN
----------------------------- ----------------------------------
Name: Mark C. Coleman Name: James F. Holden
----------------------------- --------------------------------
Title: SVP
----------------------------
Address: Address:
695 Town Center Drive, Suite 400
Costa Mesa, California 92626
Telephone No.: (714) 429-5500 Telephone No.:
Facsimile No.: (714) 429-5559 Facsimile No.:
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SCHEDULES
1.1 (Amended) Shares and Purchase Price
4 (Amended) Vesting Schedule
EXHIBITS
A. Form of Investor Questionnaire and Confidentiality Agreement
B. Summary of Certain Considerations
C. Form of the Note
D. Section 83(b) Election Form
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SCHEDULE 1.1 (AMENDED)
SHARES AND PURCHASE PRICE
450,979
Aggregate Number of Shares:
Number of Performance Shares:
424,907
Number of New Performance Shares:
10,000
Number of New Time Shares:
16,072
Aggregate Purchase Price: $575,068.40
3/19/99 Cash Payment: $424.91
3/19/99 Note: $509,463.49
9/1/99 Cash Payment: $26.07
9/1/99 Note: $65,153.93
Maximum IPO Shares: 67,463
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SCHEDULE 4 (AMENDED)
VESTING SCHEDULE
The Shares are divided into three categories and are subject to a
two-tier Vesting Schedule. Subject to the terms and conditions described in this
Agreement, the Restrictions applicable to Performance Shares, New Performance
Shares and New Time Shares will lapse, and such Shares, if any, will vest as set
forth below, provided, however, that except as set forth in this Schedule 4, in
order for Shares eligible to vest for any Measurement Period to vest, the
Purchaser must have remained an employee of the Company, or an affiliate of the
Company (or, pursuant to Section 4.4, in the case of certain transactions
involving an acquisition of the Company or the Employer, the successor of the
Employer), from the date hereof through the last day of that Measurement Period.
The table below lists four Measurement Periods, with each having a corresponding
Performance Target Income and, a corresponding Vesting Percentage. Actual Income
as of each Measurement Period will be determined within ninety (90) days of the
end of that Measurement Period.
VESTING DURING EMPLOYMENT.
Shares will vest as follows:
1. VESTING DURING EMPLOYMENT--AGGREGATE PERFORMANCE SHARES
(a) If the actual Income earned in the Measurement Period equals or
exceeds the Performance Target Income corresponding to that Measurement Period,
the Restrictions will lapse with respect to such number of Performance Shares
and New Performance Shares listed on Schedule 1.1 (the "AGGREGATE PERFORMANCE
SHARES") as is equal to the product of the Vesting Percentage corresponding to
that Measurement Period and the total number of Performance Shares and New
Performance Shares, respectively.
(b) If the actual Income earned in the Measurement Period ending
December 31, 2000 is less than the Performance Target Income for that
Measurement Period, the Restrictions will lapse with respect to such number of
Aggregate Performance Shares as is equal to the product obtained by multiplying
the Vesting Percentage corresponding to that Measurement Period, times the ratio
of the actual Income earned in that Measurement Period to the Performance Target
Income for that Measurement Period, times the number of Aggregate Performance
Shares. If the actual Income earned in any Measurement Period after December 31,
2000 is less than the Performance Target Income for that Measurement Period, but
is more than the sum of the Performance Target Income for the immediately
preceding Measurement Period plus half of the Performance Annual Target Delta,
the Restrictions will lapse with respect to such number of Aggregate Performance
Shares as is equal to the product obtained by multiplying the Vesting Percentage
corresponding to that Measurement Period, times the ratio of the Performance
Annual Actual Delta to the Performance Annual Target Delta, times the total
number of Aggregate Performance Shares.
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(c) Notwithstanding anything herein to the contrary, if (i) that certain
Agreement re eFox, LLC of even date herewith by and among the Company, eFox,
LLC, and the members of eFox named therein (the "eFOX AGREEMENT") has not been
knowingly, willfully, or recklessly breached in any material respect by eFox,
LLC or any of the members party thereto (or any such breach has been cured and
any material adverse effects of such breach have been ameliorated in all
material respects within 15 days of notice of such breach), and (ii) Purchaser
continues to be employed by the Employer, or the employment of the Purchaser
with the Employer has been terminated by Purchaser for "Good Reason" (as defined
in the Employment Agreement), or by the Employer without a conclusion reached
pursuant to the procedure set forth in paragraph (b) under "Vesting Upon Certain
Termination of Employment" that an event or circumstance constituting "Cause"
listed in paragraphs (A) or (B) of Schedule 1 of Purchaser's Employment
Agreement has occurred (provided that the operation of eFox, LLC consistent with
past practices will not constitute an act described in such paragraph (A)) and
Purchaser would qualify for vesting as described below under "Vesting Upon
Certain Termination of Employment--Aggregate Performance Shares", then any
Aggregate Performance Shares eligible to vest for any Measurement Period ending
on or before December 31, 2001 that do not vest may, in the Purchaser's
discretion, be deferred and reallocated to any subsequent Measurement Period, in
which case the amount by which actual Income for the Measurement Period for
which the Aggregate Performance Shares did not vest fell short of Target Income
for that Measurement Period will be added to the Target Income for the
Measurement Period to which the unvested Aggregate Performance Shares are
reallocated.
For purposes hereof:
"PERFORMANCE ANNUAL ACTUAL DELTA" means the difference between the
actual Income earned in any Measurement Period and the Performance Target Income
for the immediately preceding Measurement Period.
"PERFORMANCE ANNUAL TARGET DELTA" means the difference between the
Performance Target Income for any Measurement Period and the Performance Target
Income for the immediately preceding Measurement Period.
If the actual Income earned in any Measurement Period exceeds the
Performance Target Income corresponding to that Measurement Period, the amount
by which the actual Income exceeds the Performance Target Income shall be
carried forward to the following Measurement Period and added to the actual
Income for such Measurement Period. Excess Incomes may not be carried backward
to preceding periods and Aggregate Performance Shares that are eligible to vest
but do not vest in any Measurement Period will not vest unless the Company
forgives the Restrictions applicable thereto in its discretion or fails to
repurchase them within one (1) year of the end of that Measurement Period (i.e.,
Aggregate Performance Shares that fail to vest cannot be "recovered" based upon
subsequent performance).
Any vesting for a Measurement Period will be effective as of the close
of business on the last day of that Measurement Period even if vesting targets
are attained before the end of the Measurement Period, but vesting for any
Measurement Period will not be finally determined
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until actual Income for the subject Measurement Period is fully and finally
determined. In no case will the total number of Shares that the Purchaser has
the right to have vested for any Measurement Period exceed the sum of the
Aggregate Performance Shares and the Time Shares corresponding to that
Measurement Period multiplied by the Vesting Percentage corresponding to that
Measurement Period. Fractional vested Shares will be carried forward and
combined to constitute whole vested Shares that can be issued, or cashed out by
the Company at fair market value following determination of actual Income for
the last Measurement Period.
PERFORMANCE TARGET VESTING
MEASUREMENT PERIOD INCOME PERCENTAGE
January 1, 2000- December 31, 2000 $1,500,000 25%
January 1, 2001- December 31, 2001 $1,800,000 25%
January 1, 2002- December 31, 2002 $2,160,000 25%
January 1, 2003- December 31, 2003 $2,592,000 25%
For purposes hereof:
For purposes of this Schedule 4:
(i) "BUSINESS" means the business of the EMD.
(ii) "EMD" means the Electronic Media Division formed by the
Employer to utilize electronic media to market, sell and deliver sales training
products and services. If eFox, LLC becomes a wholly-owned subsidiary of the
Company or any of its affiliates, it will be included in the EMD.
(iii) "INCOME" for any Measurement Period means pre-tax income of
the Business for that Measurement Period calculated according to GAAP and
consistent with accounting policies to be agreed upon by the Chief Financial
Officer of the Company and Purchaser by March 31, 2000 and applied consistently
from period to period. In calculating Income, except as set forth herein, all
costs attributable directly to the Business, whether paid by the Company or any
of its affiliates, shall be charged to the Business, including, without
limitation costs attributable to, and bonuses and other distributions paid to
persons who are engaged principally in the Business. The calculation of Income
will not be affected by any allocation to the Business of (i) any overhead
charges of the Company not attributable directly to the Business, (ii) any
expenses incurred by or in connection with the Business but reimbursed pursuant
to an indemnification payment made by James Holden or by receipt of insurance
proceeds, (iii) any compensation charges resulting from restricted stock issued
concurrently herewith to persons employed in connection with the Business, or
any goodwill charges resulting from acquisition of eFox, LLC, or that are not
consistent with the annual business plan of the Business or approved by James
Holden while he is employed in connection with the Business and otherwise the
management of the Business, (iv) any costs incurred to comply with initiatives
that are required by the management of the Company, without the consent of James
Holden while he is employed in connection with the Business, and otherwise the
management of the Business, that are in excess of the costs of the Business
replaced by any such initiatives, or (v)
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any revenue or profit attributable to business operations other than the
Business with which Purchaser may be involved. In addition, if at the time of
calculation of Income for any Measurement Period, (i) the eFox Agreement has not
been knowingly, willfully or recklessly breached in any material respect by
eFox, LLC or any of the members party thereto (or any such breach has been cured
and any material adverse effects of such breach have been ameliorated in all
material respects within 15 days of notice of such breach), and (ii) Purchaser
continues to be employed by the Employer, or notwithstanding termination of the
employment of Purchaser, Purchaser is eligible for vesting (subject to Income
determination) as described below in paragraph (c) under "Vesting Upon Certain
Termination of Employment," then the pretax net income of eFox, LLC for that
Measurement Period will be included in Income of the Business for that
Measurement Period for purposes of this Agreement.
COMMITMENT TO EMD
During the Option Period (as defined in the eFox Agreement) and as long
as the eFox Agreement has not been knowingly or willfully or recklessly breached
in a material respect by eFox, LLC or the Members of eFox, LLC (or any such
breach has been cured and any material adverse effects of such breach have been
ameliorated in all material respects within 15 days of notice of such breach),
the Employer will commit the Leased Employees (as defined in the eFox Agreement)
to work in the Business under the day-to-day supervision of James F. Holden or
his successor as the Chief Executive Officer of the EMD, provided however, that
the Employer and its affiliates will only be obligated to provide to the
Business employees, assets, or other resources or support, the full cost of
which is paid or promptly recovered through profit generated by the Business,
including without limitation leasing to eFox, LLC or any other third party of
the employees assigned to the Business.
CALCULATION OF INCOME
(a) Within 90 days after the end of each Measurement Period, the Company
shall prepare and deliver to the Purchaser a statement of the actual Income of
the Business for such Measurement Period (the "Statement of Income"). The
Statement of Income will be prepared consistent with the definition of "Income"
provided in this Schedule 4.
(b) Not later than 15 days after the date the Statement of Income is
delivered to the Purchaser, the Purchaser shall review the Statement of Income
and shall notify the Company in writing whether the Purchaser disagrees with the
Statement of Income. Such notice shall specify with reasonable detail the items
on the Statement of Income with which the Purchaser disagrees with the Company.
If the Purchaser shall fail to give the Company such notice within such 15 day
period, the Purchaser shall be deemed to have agreed with the Company as to the
Statement of Income. The Purchaser shall have the right to review such work
papers of the Company in preparing the Statement of Income as are reasonably
necessary to verify the accuracy and fairness of presentation of the Statement
of Income and its conformity with the procedures set forth for its preparation
contained in this Schedule 4.
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(c) In the event that the Purchaser notifies the Company of a
disagreement as to the Statement of Income within the 15 day period referred to
above, the Company and the Purchaser shall use reasonable efforts to resolve any
such dispute, but if a final resolution is not obtained within 30 days after the
Statement of Income is delivered to the Purchaser, any remaining dispute shall
be submitted for resolution to a nationally recognized firm of independent
accountants (other than any such firm that has provided services to the Company
or the Purchaser within the past three years) as shall be mutually agreed upon
by the Company and the Purchaser. If the Company and the Purchaser are unable to
mutually agree upon an accounting firm within 10 days after the expiration of
such 30 day period, then the Company and the Purchaser shall each have the right
to request the American Arbitration Association, New York, New York, to appoint
an independent accounting firm. The chosen accounting firm may examine all work
papers utilized in connection with the accounting and preparation of the
Statement of Income but the scope of its engagement will be limited to resolving
those items which the Purchaser identified in the notice to the Company as to
which the Purchaser disagreed and determining whether such items were properly
reflected on the Statement of Income prepared in accordance with the
requirements of this Schedule 4. The decision of such accounting firm (the
"Final Accounting Report") shall be delivered in a written report addressed to
the Company and the Purchaser and shall be binding and conclusive upon the
parties hereto for purposes of vesting for that Measurement Period. The costs
and fees of such accounting firm shall be borne by the Purchaser unless the
Income reflected in the Final Accounting Report (i) is in excess of the Income
reflected in the Statement of Income, and (ii) results in vesting of shares in
excess of the vesting that would result from the Income reflected in the
Statement of Income.
2. VESTING DURING EMPLOYMENT -- NEW TIME SHARES
On the last day of each of the applicable Measurement Periods set forth in the
table above, if the Purchaser has remained an Employee of the Employer from the
date hereof through the last day of such Measurement Period, the Restrictions
will lapse with respect to such number of New Time Shares listed on Schedule 1.1
(the "NEW TIME SHARES") as is equal to the product of the Vesting Percentage
corresponding to that Measurement Period and the total number of New Time
Shares.
VESTING
MEASUREMENT PERIOD PERCENTAGE
January 1, 1999 - December 31, 1999 25%
January 1, 2000 - December 31, 2000 25%
January 1, 2001 - December 31, 2001 25%
January 1, 2002 - December 31, 2002 25%
3. VESTING UPON CERTAIN TERMINATION OF EMPLOYMENT -- AGGREGATE
PERFORMANCE Shares:
(a) If the employment of the Purchaser with the Employer is terminated
by death or by "Disability" as defined below, and if the actual Income for any
Measurement Period equals or exceeds the Performance Target Income corresponding
to that Measurement Period, the
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Restrictions will lapse with respect to such number of Aggregate Performance
Shares as is equal to the product of the Vesting Percentage corresponding to
that Measurement Period and the total number of Aggregate Performance Shares. If
the actual Income earned in any Measurement Period is less than the Performance
Target Income for that Measurement Period, but is more than the sum of the
Performance Target Income for the immediately preceding Measurement Period plus
half of the Annual Target Delta, the Restrictions will lapse with respect to
such number of Aggregate Performance Shares as is equal to the product obtained
by multiplying the Vesting Percentage corresponding to that Measurement Period,
times the ratio of the Annual Actual Delta to the Annual Target Delta, times the
total number of Aggregate Performance Shares.
(b) As set forth in the Purchaser's Employment Agreement, the employment
of the Purchaser with the Employer shall not be terminated without "Cause" (as
defined in the Employment Agreement) without Required Approval. For these
purposes, "REQUIRED APPROVAL" means approval by at least three members,
including the member representing the President's Council, of an executive
management committee of the Company, which committee shall consist of four (4)
members of the senior management of the Company and one (1) representative of
the President's Council of the Company.
(c) If the employment of the Purchaser by the Employer is terminated by
Purchaser for "Good Reason" (as defined in the Employment Agreement), or by the
Employer without a conclusion reached pursuant to the procedure set forth in
paragraph (b) that an event or circumstance constituting "Cause" listed in
paragraphs (A) or (B) of Schedule 1 of Purchaser's Employment Agreement has
occurred (provided that the operation of eFox, LLC consistent with past
practices will not constitute an act described in such paragraph (A)), and (i)
if the Purchaser's employment is terminated prior to the last day of the first
Measurement Period or if the actual Income has exceeded the Performance Target
Income for all Measurement Periods prior to the termination of the Purchaser's
employment, upon the last day of each Measurement Period ending after the
termination of the Purchaser's employment with the Employer, the Restrictions
will lapse with respect to such number of Aggregate Performance Shares as is
equal to the product of the Vesting Percentage corresponding to that Measurement
Period and the total number of Aggregate Performance Shares, or (ii) if the
Purchaser's employment is terminated after the last day of the first Measurement
Period and if the actual Income has not equaled or exceeded the Performance
Target Income for all Measurement Periods prior to the termination of the
Purchaser's employment, upon the last day of each Measurement Period ending
after the termination of the Purchaser's employment with the Employer, the
Restrictions will lapse with respect to such number of Aggregate Performance
Shares as is equal to the greater of (A) the product of thirty-five percent
(35%) of the Vesting Percentage corresponding to that Measurement Period and the
total number of Aggregate Performance Shares, or (B) the product obtained by
multiplying the Vesting Percentage corresponding to that measurement period
times the ratio of the actual Income for that Measurement Period to the
Performance Target Income for that Measurement Period (provided that this ratio
will not exceed 100%), times the total number of Aggregate Performance Shares,
provided however, that if any of the events or circumstances constituting
"Cause" listed in item A of Schedule 1 of the Purchaser's Employment Agreement
occurs at any time before the end of the final Measurement Period, then, in
addition to the rights of the Company set forth in Section 4.1(d), the Aggregate
Performance Shares shall no longer
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continue to vest as set forth in this paragraph (c) and the Company or its
assignee may, in the Company's discretion, at any time and from time to time for
a period of one (1) year following such occurrence, repurchase from the
Purchaser at the price per share that the Purchaser paid to the Company, and the
Purchaser will sell to the Company, any or all unvested Aggregate Performance
Shares. For purposes of vesting under this paragraph (c), "INCOME" will include
only pre-tax income of eFox calculated according to GAAP consistently applied.
In the event of any eFox Liquidity Transaction, the number of Aggregate
Performance Shares that would otherwise vest pursuant to this paragraph (c)
after such eFox Liquidity Transaction, will not exceed the remainder obtained by
subtracting from the Target Value (a) the product obtained by multiplying 35
times the number of Aggregate Performance Shares vested pursuant to this
Agreement, as well as (b) the product obtained by multiplying the Purchaser
Ratio times the Liquidity Transaction Value for each eFox Liquidity Transaction.
For these purposes: ( i ) the "PURCHASER RATIO" means the ratio of the number of
Aggregate Performance Shares sold to Purchaser pursuant hereto to the total
number of shares sold concurrently herewith to all persons acquiring Series A
common stock of the Company that vests based upon performance of the Business;
(ii) "TARGET VALUE" means the product of the Purchaser Ratio and $25 million;
(iii) "EFOX LIQUIDITY TRANSACTION" means any sale by eFox, LLC or any of its
members of securities of or any interest in eFox, LLC or assets of eFox, LLC
(other than sales of assets in the ordinary course of business) or any joint
venture or similar arrangement involving consideration to eFox, LLC or its
members; and (iv) "LIQUIDITY TRANSACTION VALUE" means the value of the
consideration paid or payable to eFox, LLC or its members in any eFox Liquidity
Transaction, net of direct transaction expenses.
For purposes hereof, the term "DISABILITY" means the Purchaser suffers
an ongoing physical or psychological impairment that has rendered Purchaser
unable, as determined in good faith by the Company's Chief Executive Officer, to
perform the Purchaser's duties to the Employer, notwithstanding reasonable
accommodation by the Employer (the Company, at its option and expense, being
entitled to retain a physician to confirm the existence of such disability), for
a period of three (3) consecutive months or six (6) months in any 12-month
period.
4. VESTING UPON CERTAIN TERMINATION OF EMPLOYMENT -- NEW TIME SHARES:
If the employment of the Purchaser with the Employer is terminated by
death, by the Employer without "Cause" (provided that working in the business of
eFox, LLC consistent with past practices will not constitute an act described in
paragraph (A) of such definition of Cause) or by "Disability" as defined above,
the Restrictions will lapse with respect to such number of New Time Shares (in
addition to those New Time Shares previously vested for prior Measurement
Periods) as is equal to the product of the Vesting Percentage corresponding to
the Measurement Period in which termination of employment occurred multiplied by
the total number of New Time Shares times a fraction, the numerator of which is
the number of days in the Measurement Period in which termination of employment
occurred through the date of termination of the employment of the Purchaser, and
the denominator of which is 365.
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