VISERV, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (the "Agreement") is made as
of this ____ day of September, 2000, by and between Agate Technologies, Inc., a
Delaware corporation (the "Company"), and _____________________________ (the
"Purchaser").
1. PURCHASE OF SHARES.
1.1 PURCHASE. Purchaser hereby purchases, and the Company hereby sells to
Purchaser, ______ shares of the Company's Common Stock (the "Shares") at a
purchase price of $0.50 per share for an aggregate of $______ (the "Purchase
Price").
1.2 PAYMENT. The Purchase Price shall be deemed fully paid and discharged
by the delivery, concurrently with execution of this Agreement, of $______ in
cash or cash equivalent. Purchaser shall also deliver to the Company any
additional documents required by the Company as a condition for the purchase.
1.3 DELIVERY OF CERTIFICATES. The certificate representing the Shares shall
be delivered to Purchaser within five (5) business days from the date hereof.
2. SECURITIES LAW COMPLIANCE.
2.1 EXEMPTION FROM REGISTRATION. The Shares have not been registered under
the Securities Act of 1933, as amended (the "1933 Act"), and are being issued to
Purchaser in reliance upon the exemption from such registration provided by
Section 4(2) of the Act.
2.2 RESTRICTED SECURITIES.
(a) Purchaser hereby confirms that Purchaser has been informed that the
Shares are "restricted securities" under the 1933 Act and may not be resold or
transferred unless the Shares are first registered under the federal securities
laws or unless an exemption from such registration is available. Accordingly,
Purchaser hereby acknowledges that Purchaser is prepared to hold the Shares for
an indefinite period and that Purchaser is acquiring the Shares for Purchaser's
own account, for investment, and not with a view to or for sale in connection
with any distribution of the Shares.
(b) Purchaser is aware of the adoption of Rule 144 by the Commission,
promulgated under the 1933 Act, which permits limited public resales of
securities acquired in a nonpublic offering, subject to the satisfaction of
certain conditions, including, among other things: the availability of certain
current public information about the issuer, the sale being through a broker in
an unsolicited "broker's transaction" and the amount of securities being sold
during any three (3) month period not exceeding specified limitations. Purchaser
is aware that Rule 144 of the Commission under the 1933 Act is not presently
available to exempt the sale of the Shares from the registration requirements of
the 1933 Act. Purchaser further represents that he understands that at the time
he wishes to sell the Shares there may be no public market upon
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which to make such a sale, and that, even if such a public market exists for the
Company's Common Stock, the Company may not be satisfying the current public
information requirement of Rule 144 or other conditions under Rule 144 which are
required of the Company. If so, Purchaser understands that he will be precluded
from selling the securities under Rule 144.
2.3 PURCHASER SOPHISTICATION AND ACCESS TO INFORMATION.
(a) Purchaser represents that Purchaser is an "accredited investor" as
defined in Rule 501(a) of the 1933 Act having either (i) an individual net
worth, or joint net worth with Purchaser's spouse, exceeding $1,000,000 at the
time of the purchase of the Shares, or (ii) an individual income in excess of
$200,000 in each of the two most recent years or joint income with Purchaser's
spouse in excess of $300,000 in each of those years, and having reasonable
expectations of reaching the same income level in the current year.
(b) Purchaser has such knowledge and experience in business and
financial matters and with respect to investments in securities to enable
Purchaser to understand and evaluate the risks of an investment in the Shares to
be acquired by Purchaser and to form an investment decision with respect thereto
and is able to bear the risk of such investment for an indefinite period and to
afford a complete loss thereof.
(c) Purchaser believes it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Shares. Purchaser
further represents that 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 regarding the business, properties, prospects and
financial condition of the Company.
2.4 DISPOSITION OF SHARES. Except as provided in Section 2.6 herein,
Purchaser hereby agrees that Purchaser shall make no disposition or transfer of
the Shares (other than a permitted transfer under Section 3.1 hereof) unless and
until:
(a) Purchaser shall have notified the Company of the proposed
disposition and provided a written summary of the terms and conditions of the
proposed disposition;
(b) Purchaser shall have complied with all requirements of this
Agreement applicable to the disposition of the Shares; and
(c) Purchaser shall have provided the Company an opinion of counsel in
form and substance satisfactory to the Company, that (i) the proposed
disposition does not require registration of the Shares under the 1933 Act or
(ii) all appropriate action necessary for compliance with the registration
requirements of the 1933 Act or of any exemption from registration available
under the 1933 Act (including Rule 144) has been taken.
The Company shall not be required (i) to transfer on its books any
Shares that have been sold or transferred in violation of the provisions of this
Section 2 nor (ii) to treat as the owner of the Shares, or otherwise to accord
voting or dividend rights to, any transferee to whom the Shares have been
transferred in contravention of this Agreement.
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2.5 RESTRICTIVE LEGENDS. Except as provided in Section 2.6 of this
Agreement, in order to reflect the restrictions on the disposition of the
Shares, the stock certificates for the Shares will be endorsed with restrictive
legends, including the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND
QUALIFIED PURSUANT TO FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS
PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND
QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED."
(b) If required by the authorities of any state in connection with the
issuance of the Shares, the legend or legends required by such state authorities
shall also be endorsed on all such certificates.
2.6 COMPLIANCE WITH RULE 144(K). In the event that the Shares may be resold
by Purchaser in reliance upon Rule 144(k) of the 1933 Act, Section 2.4 of this
Agreement shall not apply and, upon notice to the Company by Purchaser, the
Company agrees to remove the legend specified in Section 2.5(a) of this
Agreement.
3. TRANSFER RESTRICTIONS.
3.1 RESTRICTION ON TRANSFER. The transfer restrictions referred to in
Section 2 of this Agreement shall not be applicable if Purchaser receives prior
written consent from the Company to (a) a gratuitous transfer of the Shares made
to Purchaser's family members, including adopted children, or to a trust for the
exclusive benefit of Purchaser or Purchaser's family members, (b) a transfer of
title to the Shares effected pursuant to Purchaser's will or the laws of
intestate succession, or (c) a transfer to the Company in pledge as security for
any purchase-money indebtedness incurred by Purchaser in connection with the
acquisition of the Shares.
3.2 TRANSFEREE OBLIGATIONS. Each person (other than the Company) to whom
the Shares are transferred by means of one of the permitted transfers specified
in Section 3.1 hereof must, as a condition precedent to such transfer,
acknowledge in writing to the Company that such person is bound by the
provisions of this Agreement and that the transferred shares are subject to the
provisions hereunder to the same extent such shares would be so subject if
retained by Purchaser.
3.3 STOP-TRANSFER NOTICES. Purchaser agrees that, in order to ensure
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.
3.4 REFUSAL TO TRANSFER. The Company shall not be required (i) to 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
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or pay dividends to any purchaser or other transferee to whom such Shares shall
have been so transferred.
4. GENERAL PROVISIONS.
4.1 DEFINITIONS. For purposes of this Agreement, the following provisions
shall be applicable in determining the parent and subsidiary corporations of the
Company:
(a) Any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company shall be considered to be a parent
corporation of the Company, provided each such corporation in the unbroken chain
(other than the Company) owns, at the time of the determination, stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(b) Each corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company shall be considered to be a subsidiary
of the Company, provided each such corporation (other than the last corporation)
in the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
4.2 NOTICES. Any notice required shall be given in writing and shall be
deemed effective upon personal delivery, upon deposit with a nationally
recognized courier service, or upon deposit in the United States mail,
registered or certified, postage prepaid and addressed to the party entitled to
such notice at the address indicated below such party's signature line on this
Agreement or at such other address as is on the books and records of the
Company.
4.3 NO WAIVER. The failure of the Company (or its assignees) in any
instance to exercise its rights granted under this Agreement shall not
constitute a waiver of any other rights that may subsequently arise under the
provisions of this Agreement or any other agreement between the Company and
Purchaser. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition, whether of
like or different nature.
5. MISCELLANEOUS PROVISIONS.
5.1 PURCHASER UNDERTAKING. Purchaser hereby agrees to take whatever
additional action and execute whatever additional documents the Company may in
its judgment deem necessary or advisable in order to carry out the obligations
or restrictions imposed on Purchaser under this Agreement.
5.2 AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
5.3 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, as such laws are applied
to contracts entered into and performed in such State.
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5.4 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
5.5 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure to
the benefit of, and be binding upon, the Company and its successors and assigns
and Purchaser and Purchaser's legal representatives, heirs, legatees,
distributees, assigns and transferees by operation of law, whether or not any
such person shall have become a party to this Agreement and have agreed in
writing to join herein and be bound by the terms and conditions hereof.
5.6 SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
Agate Technologies, Inc.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
PURCHASER
__________________________________________
Address: _________________________________
_________________________________
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SPOUSAL CONSENT
________________ (Purchaser's spouse) indicates by the execution of
this Agreement his or her consent to be bound by the terms herein as to his or
her interests, whether as community property or otherwise, if any, in the
Shares.
________________________________________
Signature
________________________________________
Print Name
