Pyramid Breweries Inc. Contracts
Sample Business Contracts
Stock Purchase and Restriction Agreement - Pyramid Breweries Inc. and Martin Kelly
Stock Purchase Forms
STOCK PURCHASE AND RESTRICTION AGREEMENT
This Stock Purchase and Restriction Agreement (this "AGREEMENT") is entered
into as of this 19th day of June, 2001, by and between Pyramid Breweries, Inc.,
a Washington corporation (the "COMPANY"), and Martin Kelly ("EXECUTIVE
OFFICER").
WHEREAS, the Company desires that the Executive Officer have a significant
equity interest in the Company in order to more closely align the interests of
the Executive Officer and the shareholders of the Company;
NOW, THEREFORE, in consideration of the foregoing and for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive Officer hereby agree as follows:
1. Exercise of Options. The Executive Officer holds options to acquire
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237,400 shares (the "SHARES") of common stock of the Company, 135,100 of which
are vested and 102,300 of which are unvested. The Company shall cause the
option agreement of the Executive Officer with respect to the Shares to be
amended to permit the immediate exercise of all option shares, including those
that are not currently vested. Concurrently with the execution of this
Agreement, Executive Officer shall exercise all of the options for the Shares
and pay the exercise price in accordance with the payment provisions of Section
8 hereof.
2. Grant of Additional Options. The Company hereby grants Executive
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Officer additional options to acquire 150,000 shares of common stock of the
Company. This grant is made pursuant to the Company's 1995 Employee Stock
Option Plan, as amended. The exercise price shall be $2.125 per share.
Concurrently with the exexcution and delivery of this Agreement, Executive
Officer shall exercise all of the additional options and pay the exercise price
in accordance with the payment provisions of Section 8 hereof. For purposes of
this Agreement, the shares acquired upon the exercise of the additional options
shall be included within the definition of "Shares". The options granted under
this Section 2, together with the 102,300 options for which vesting is
accelerated under Section 1, are referred to herein as the "UNVESTED OPTION
SHARES".
3. Repurchase Right. Executive Officer hereby grants the Company the
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right (the "REPURCHASE RIGHT"), which, unless earlier terminated in accordance
with Section 6 hereof, is exercisable at any time during the 60-day period (or
such longer period of time mutually agreed to in writing by the parties)
following the date (i) the Company terminates the Executive Officer's employment
for Cause (as defined in subsection 6(f)) or (ii) Executive Officer terminates
his employment with the Company, to repurchase at the Purchase Price, all or any
portion of the Unvested Option Shares owned by the Executive Offficer, in which
the Executive Officer has not acquired a vested interest in accordance with the
vesting provisions of Section 6 (the "UNVESTED SHARES"). For purposes of this
Agreement, the "PURCHASE PRICE" shall mean, with respect to the Unvested Option
Shares, the exercise price of such options.
4. Delivery of Stock Certificates; Legend. The stock certificate(s)
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representing the Shares subject to the Repurchase Right of the Company shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN COMPLIANCE
WITH THE TERMS OF THAT CERTAIN STOCK PURCHASE AND RESTRICTION AGREEMENT
(THE "AGREEMENT") BY AND BETWEEN THE ISSUER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE (THE "ISSUER") AND THE HOLDER OF SUCH SHARES, DATED
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AS OF JUNE 19, 2001, PURSUANT TO WHICH THE ISSUER HAS CERTAIN RIGHTS TO
REPURCHASE THE SHARES REPRESENTED BY THIS CERTIFICATE UPON THE OCCURRENCE
OR NON-OCCURRENCE OF CERTAIN EVENTS. THE SECRETARY OF THE ISSUER WILL UPON
WRITTEN REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF
WITHOUT CHARGE."
For Shares that become no longer subject to the Repurchase Right by the
Company, upon written request by the Executive Officer, the Company shall
reissue stock certificate(s) representing such Shares without a legend.
5. Exercise of the Repurchase Right. The Repurchase Right shall be
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exercisable by written notice delivered to the Executive Officer prior to the
expiration of the applicable 60-day period specified in Section 3. The notice
shall indicate the number of Unvested Shares to be repurchased and the date on
which the repurchase is to be effected, such date to be not more than 30 days
after the date of notice. If any portion of the notes provided for in Section 8
hereof remains outstanding, the repurchase amount shall be credited first
against principal and interest on the notes. Any remaining proceeds shall be
paid to the Executive Officer in cash or cash equivalents upon delivery of the
Unvested Shares.
6. Termination of the Repurchase Right.
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(a) The Repurchase Right shall terminate with respect to any
Unvested Shares for which it is not timely exercised under Section 5.
(b) The Repurchase Right shall terminate and the Executive
Officershall acquire a vested interest with respect to the Unvested Option
Shares in accordance with the following schedule:
With respect to the 102,300 Unvested Option Shares referenced in Section 1
hereof, at the rate of 7,000 shares (or such lesser number as shall remain
unvested) on the last day of each month, commencing June 2001, until such Shares
are fully vested.
With respect to the 150,000 Unvested Option Shares received on the exercise
of the Option granted under Section 2 hereof, as follows:
Date Shares Vested
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December 31, 2002 50,000
December 31, 2003 50,000
December 31, 2004 50,000
(c) Notwithstanding anything to the contrary contained herein,
the Repurchase Right shall immediately terminate with respect to all the
Unvested Option Shares, upon (i) a Change of Control, or (ii) the Executive
Officer's death, Disability (as defined below), termination of the Executive
Officer's employment by the Company without Cause (as defined below) or
termination of the Executive Officer's employment by Executive Officer for Good
Reason (as defined below).
(d) For purposes of this Agreement, "DISABILITY" means that, for a
continuous period of twenty-four (24) weeks or more, Executive Officer has been
unable to perform the essential functions of the job because one or more mental
or physical illnesses and/or disabilities, provided that Company may grant
Executive Officer unpaid leave if and to the extent that, in Company's judgment,
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doing so is required by law. A determination of Disability shall be made by a
physician satisfactory to both the Executive Officer and the Company, provided
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that if the Executive Officer and the Company do not agree on a physician, the
Executive Officer and the Company shall each select a physician who together
shall select a third physician whose determination as to Disability shall be
binding on all parties.
(e) For purposes of this Agreement, "CHANGE OF CONTROL" shall
mean:
(i) the sale, transfer or other disposition of all or
substantially all of the assets of the Company,
(ii) any merger or consolidation in which the Company is
a party in which the holders of the Company's voting securities as a class prior
to such combination own less than 50% of the voting stock of the combined
entities following such transaction,
(iii) any plan or proposal for liquidation or dissolution
of the Company, or
(iv) The acquisition by any person or persons acting in
concert of beneficial ownership of more than 50% of the then outstanding voting
securities of the Company and for this purpose the terms "person" and
"beneficial ownership" shall have the meanings provided in Section 13(d) of the
Securities and Exchange Act of 1934, as amended, or related rules promulgated by
the Securities and Exchange Commission.
(f) For purposes of this Agreement, "CAUSE" means and is limited
to (i) performance of any act or failure to perform any act in bad faith and to
the detriment of the Company; (ii) dishonesty, intentional misconduct or
material breach of any agreement with the Company; or (iii) commission of a
crime involving dishonesty, breach of trust or physical or emotional harm to any
person; and shall be determined by a majority of the Company's Board of
Directors after the Executive Officer has been given a reasonable opportunity to
address the Board.
(g) For purposes of this Agreement, "GOOD REASON" means a breach
by the Company of a material obligation to the Executive Officer under this
Agreement or the Amended and Restated Employment Agreement dated June 19, 2001,
or any other agreement with the Executive relating to Executive's employment
that is not cured within fourteen (14) days after written notice of such breach
is received by the Company.
7. Restrictions of Transfer of Unvested Shares. Any attempted
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transfer of Unvested Shares other than in accordance with this Agreement shall
be null and void and the Company may refuse (i) to recognize any such transfer
and not reflect in its records any change of ownership of such Unvested Shares
pursuant to such transfer, and (ii) to treat as owner of such Unvested Shares or
to accord the right to vote or to pay dividends to any transferee to whom such
Unvested Shares shall have been transferred.
8. Payment for the Shares.
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(a) The Executive Officer shall pay the Purchase Price for the
Shares by the execution and delivery of a promissory note substantially in the
form of Exhibit A hereto (the "PROMISSORY NOTE"). At any time prior to the date
on which the Promissory Note is paid in full, the Executive Officer shall have
the right to require the Company to repurchase all or any portion of the vested
Shares (including such shares issued with respect to those shares as an exceed
adjustment pursuant to Section 12 hereof), the purchase price of which does not
the principal amount and accrued interest then outstanding on the Promissory
Note, provided, however, that the number of Shares so required to be repurchased
shall not exceed 75,000 shares (subject to equitable adjustment pursuant to
Section 12 hereof). The purchase price for the shares to be purchased by
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the Company shall be the average closing price of the Company's shares on The
Nasdaq Stock Market for the five trading days preceding the date of delivery of
the written notice from the Executive Officer to the Company. The Company shall
pay the purchase price by a reduction in the principal amount then outstanding
on the Promissory Note; provided that if the Company's quarterly dividend is
reduced below $.044 per share (as adjusted for adjustment pursuant to Section 12
hereof), Executive Officer shall be entitled to have the purchase price credited
against accrued interest on the Promissory Note, if any.
(b) The Company shall remit any federal and state withholding
taxes and the Executive Officer's portion of FICA taxes as a result of any
income from the exercise of the options to the appropriate taxing authorities.
The amount of such withholding taxes and FICA taxes remitted on behalf of the
Executive Officer shall be paid by the Executive Officer by the execution and
delivery of a promissory note substantially in the form of Exhibit B hereto (the
"TAX NOTE").
9. Pledge of the Shares.
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(a) The Executive Officer hereby pledges the Shares, together
with any proceeds of the Shares, to the Company to secure the full and punctual
payment, performance and discharge of the Promissory Note and the Tax Note. The
Company shall return all Shares pledged under this Agreement to the Executive
Officer on the payment of all principal and interest due under the Promissory
Note and the Tax Note.
(b) If the Company issues a stock dividend, or reclassifies,
reorganizes or otherwise changes the capital structure of the Companywhile any
principal or accrued interest remains outstanding on the Promissory Note or the
Tax Note, the Executive Officer agrees to deliver, or cause to be delivered,
immediately to the Company all additional shares of stock or securities of the
Company issued to the Executive Officer. Such additional shares or securities
shall be held subject to the terms of this Agreement in the same manner as the
shares originally pledged under this Agreement.
(c) As long as the Executive Officer is not in default under the
Promissory Note or the Tax Note, the Executive Officer shall be entitled to vote
the Shares for all purposes. The Executive Officer shall deliver all dividends
on the Shares paid in stock or securities on the Shares to the Company on
receipt of the certificates representing such stock or securities, and the
Company shall hold such stock or securities as additional collateral.
(d) Following a default on the Promissory Note or the Tax Note
or under this Section 9 ("DEFAULT"), the Company may sell all or any portion of
the Shares at a public or private sale. The Company may purchase all or any
part of the Shares at the sale. Proceeds of any sale shall be applied first to
pay all costs and expenses related to the sale of the Shares, and second, to pay
all amounts owed on the Promissory Note and the Tax Note (on a proportional
basis) on the date of sale. The balance of the proceeds, if any, shall be
remitted to the Executive Officer. The Executive Officer shall remain liable to
the Company for any remaining principal balance on the Promissory Note and the
Tax Note not satisfied from the sale proceeds of the Shares.
(e) Upon Default, the Company shall have all rights available to
the Company at law or in equity, including all applicable rights available under
the Washington Uniform Commercial Code, and all rights and remedies granted
under this Agreement, the Promissory Note or the Tax Note. These rights and
remedies shall be cumulative, and may be exercised concurrently with all other
rights and remedies the Company may have. Nothing in this Agreement shall
preclude the Company from collecting any indebtedness without resorting to the
Shares.
10. Right to Require Company Purchase. In the event that the
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employment of the Executive Officer is terminated prior to the date on which the
Promissory Note is paid in full (i) by the Company without Cause, (ii) by reason
of the Executive Officer's death, (iii) by reason of the Executive Officer's
Disability, or (iv) by the Executive Officer for Good Reason, the Executive
Officer shall have the right to require the
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Company to repurchase all or any portion of the Shares (including any shares
issued with respect to those shares as an adjustment pursuant to Section 12
hereof). Such right shall be exercised by delivery to the Company of written
notice within 60 days of the Executive Officer's last day of employment. The
notice shall specify the number of shares that the Company will be required to
repurchase. The purchase price for the shares to be purchased by the Company
shall be the average closing price of the Company's shares on The Nasdaq Stock
Market for the five trading days preceding the date of delivery of the written
notice from the Executive Officer to the Company. The Company shall pay the
purchase price within 10 business days of delivery of the written notice, at its
sole option, either in cash or by a reduction in the principal amount of the
Promissory Note and/or Tax Note.
11. Fractional Shares. No fractional shares shall be repurchased by
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the Company. Accordingly, should the Repurchase Right extend to a fractional
shares (in accordance with the vesting provisions of Section 6) at the time the
Executive Officer ceases to be an employee of the Company, then such fractional
share shall be added to any fractional share in which the Executive Officer is
at such time vested in order to make one whole vested share no longer subject to
the Repurchase Right.
12. Adjustments for Stock Dividends, Stock Splits, etc. In the event of
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any stock dividend, stock split, reorganization, spin-off, recapitalization or
other change affecting the Company's outstanding Common Stock as a class
effected without receipt of consideration, then appropriate adjustments shall be
made in the number and/or type of shares or securities the Company is required
to repurchase under Section 8 and Section 10 hereof and the dividend rate set
forth in Section 8 hereof in order to reflect the effect of any such transaction
upon the Company's capital structure. Further, any new, substituted or
additional securities or other property (including money paid other than as a
regular cash dividend) which is by reason of any such transaction distributed
with respect to the Shares shall be immediately subject to the Repurchase Right,
but only to the extent the Shares are at the time covered by such right.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the number of Shares hereunder and to the price per
share to be paid upon the exercise of the Repurchase Right in order to reflect
the effect of any such transaction upon the Company's capital structure;
provided, however, that the aggregate Purchase Price shall remain the same.
13. No Employment or Service Contract. Nothing in this Agreement shall
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confer upon the Executive Officer any right to continue in the service of the
Company, or any parent or subsidiary Company, for any period of time or
interfere with or restrict in any way the rights of the Company, or any parent
or subsidiary of the Company if applicable, which rights are hereby expressly
reserved by each, to terminate the status of the Executive Officer at any time
for any reason whatsoever, with or without cause.
14. Notices. Any notice required in connection with (i) the Repurchase
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Right; (ii) the disposition of any Shares covered thereby; or (iii) the Company
purchase of the Executive Officer's shares pursuant to Section 9 hereof, shall
be given in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States mail, registered or certified, postage prepaid and
addressed to the party entitled to such notice (a) if to the Executive Officer,
at the address set forth on the signature page hereof, or at such other address
as the Executive Officer shall have furnished to the Company in writing, or (b)
if to the Company, at the principal executive offices of the Company, or at such
other address as the Company shall have furnished to the Executive Officer in
writing.
15. No Waiver. The failure of the Company, or its assignees, in any
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instance to exercise the Repurchase Right shall not constitute a waiver of any
other repurchase rights or rights under this Agreement or any other agreement
between the Company and the Executive Officer. 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.
<PAGE>
16. Cancellation of Shares; Surrender of Certificates; Power of
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Attorney. In the event the Company or its assignees exercises the Repurchase
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Right with respect to the Unvested Shares owned by the Executive Officer, the
Executive Officer shall, within three days of notice thereof by the Company or
its assignees of the exercise of the Repurchase Right, surrender to the
Secretary of the Company any and all stock certificates evidencing, in whole or
in part, the Unvested Shares held by the Executive Officer to be repurchased.
Notwithstanding the obligation of the Executive Officer to surrender stock
certificates to the Company upon the exercise of the Repurchase Right,
immediately upon exercise of the Repurchase Right and delivery of notice thereof
to the Executive Officer, legal and beneficial ownership of the repurchased
Unvested Shares, and all right, title and interest therein (other than the right
to receive the Purchase Price for the repurchased Unvested Shares) shall pass to
the Company and the Company shall have the right (a) to recognize the repurchase
pursuant to the Repurchase Right in its records and (b) not to treat the
Executive Officer as owner of the repurchased Unvested Shares for purposes of
voting rights, dividends or otherwise. The Executive Officer hereby grants a
limited power of attorney to the Secretary of the Company to effect any
repurchase of Unvested Shares pursuant to the Repurchase Right.
17. Entire Contract. This Agreement, together with the Amended and
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Restated Employment Agreement dated June 19, 2001, constitute the entire
agreement between the parties hereto with respect to the subject matter hereof.
18. Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Washington, without regard to the
conflict of law principles thereof.
19. Attorneys' Fees and Costs. If the Executive Officer or the Company
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institutes legal proceedings to settle any controversy arising under this
Agreement, each party in such action shall bear its own attorneys' fees and
costs and the prevailing party shall not be entitled to recover its attorneys'
fees and costs from the other party.
20. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement shall be submitted to and be finally resolved by arbitration,
pursuant to the provisions of the United States Arbitration Act (9 U.S.C. Sec. 1
et seq.), to be conducted by an arbitration service mutually agreed upon by the
parties, with such arbitration to be held in Seattle, Washington in accordance
with the American Arbitration Association's ("AAA") Commercial Arbitration Rules
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then in effect. If the amount in controversy is less than $250,000, the
arbitration shall be conducted by a single arbitrator; if the amount in
controversy is $250,000 or more, the arbitration shall be conducted by a panel
of three arbitrators. The arbitrator(s) shall be selected by mutual agreement
of the parties. If the parties cannot agree on the selection of the
arbitrator(s) then the arbitrator(s) shall be chosen by Judicial Dispute
Resolution, LLC. Each party hereby irrevocably agrees that service of process,
summons, notices or other communications related to the arbitration procedure
shall be deemed served and accepted by the other party if given in accordance
with Section 14 of this Agreement. The arbitrator(s) shall render a judgment of
default against any party who fails to appear in a properly noticed arbitration
proceeding. Any award or decision rendered in such arbitration shall be final
and binding on both parties, and judgment may be entered thereon in any court of
competent jurisdiction if necessary; provided, however, that the arbitrators'
decision is subject to judicial review as provided by applicable law. Either
party may apply for and obtain from any court of competent jurisdiction relief
in the nature of temporary interlocutory relief, provided such party
simultaneously submits the matter in controversy to arbitration for final
resolution of the merits of such controversy or claim pursuant to this Section
20.
21. Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
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22. Captions and Headings. The various captions and headings of this
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Agreement are for reference only and shall not be considered or referred to in
resolving questions of interpretation of this Agreement.
23. Successors and Assigns. The provisions of this Agreement shall
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inure to the benefit of, and be binding upon, the Company and its successors and
assigns and the Executive Officer and the Executive Officer'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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
COMPANY
Pyramid Breweries, Inc.
By:
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Wayne Drury, Chief Financial Officer
EXECUTIVE OFFICER
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Martin Kelly