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Sample Business Contracts

Stock Repurchase Agreement - HomeAway Inc.

STOCK REPURCHASE AGREEMENT

THIS STOCK REPURCHASE AGREEMENT (this "Agreement") is made as of the 30th day of July, 2010, by and among HomeAway, Inc., a Delaware corporation (the "Company"), and each of the other persons listed on Exhibit A attached hereto (each of whom is referred to herein as a "Seller" and who are collectively referred to herein as the "Sellers").

WHEREAS, the Board of Directors (the "Board") and the stockholders of the Company have approved a program pursuant to which the Company will make quarterly payments to certain of its stockholders (i) in satisfaction of accrued but unpaid dividends on the outstanding shares of Series C Preferred Stock of the Company and (ii) to repurchase shares of the outstanding shares of the Series A Preferred Stock of the Company (the "Series A Preferred Stock") and the Series B Preferred Stock of the Company (the "Series B Preferred Stock") (the "Repurchase"); and

WHEREAS, subject to the approval of the Board each quarter, the Company intends to effect the Repurchase by making one or more quarterly payments to the Sellers, and the Sellers have agreed to surrender to the Company the certificate or certificates representing the Seller Shares (as defined below) for cancellation by the Company once such Sellers have received an aggregate consideration amount equal to the Per Share Purchase Price (as defined below) for the Seller Shares.

NOW, THEREFORE, in consideration of the promises, covenants, and conditions set forth herein, the parties hereto agree as follows:

1. Purchase and Sale of Stock.

1.1 Sale of Shares. Subject to the terms and conditions of this Agreement, each Seller agrees, severally and not jointly, to sell to the Company at the Repurchase Closing (as defined below) (i) that number of shares of Series A Preferred Stock set forth opposite such Seller's name on Exhibit A attached hereto under the heading "Number of Series A Shares Repurchased" (the "Seller Series A Shares") at a price per share of $1.40 (such share number and price per share as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the date of this Agreement), plus an additional amount equal to any dividends declared or accrued but unpaid on each such share (as adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the date of this Agreement) (the "Per Series A Share Purchase Price") and (ii) that number of shares of Series B Preferred Stock set forth opposite such Seller's name on Exhibit A attached hereto under the heading "Number of Series B Shares Repurchased" (the "Seller Series B Shares," and together with the Seller Series A Shares, the "Seller Shares") at a price per share of $2.00 (such share number and price per share as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the date of this Agreement), plus an additional amount equal to any dividends declared or accrued but unpaid on each such share (as adjusted for stock splits, stock dividends, combinations, recapitalizations and the like after the date of this Agreement) (the "Per Series B Share Purchase Price," and each of the "Per Series A Share Purchase Price"

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and "Per Series B Share Purchase Price," sometimes referred to herein as a "Per Share Purchase Price"). The aggregate consideration payable to each Seller at the Repurchase Closing is set forth on Exhibit A and shall be referred to as the "Aggregate Repurchase Price".

1.2 Repurchase Closing. Unless the Board determines otherwise, the purchase and sale of the Seller Shares by the Sellers shall take place at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 900 S. Capital of Texas Highway N., Las Cimas IV, Fifth Floor, Austin, Texas 78746-5546 at 10:00 A.M. (local time), on July 30, 2010, or at such other times and places as the Company shall determine in its sole discretion (which times and places are each designated as a "Repurchase Closing"). At the applicable Repurchase Closing:

(a) Each Seller shall surrender to the Company stock certificate(s) representing the Seller Shares, duly endorsed to the Company and accompanied by a duly executed assignment separate from certificate in the form provided by the Company; and

(b) Subject to the terms and conditions of this Agreement, the Company shall pay to each Seller the Aggregate Repurchase Price to be paid to such Seller as set forth on Exhibit A, less any applicable withholding, by check, wire transfer or any combination thereof.

2. Representations and Warranties of the Sellers. Each Seller, severally and not jointly, hereby represents and warrants to the Company that:

2.1 Ownership of Shares. Such Seller owns all right, title and interest (legal and beneficial) in and to all of the Seller Shares free and clear of all liens, including, but not limited to, any lien, pledge, claim, security interest, encumbrance, mortgage, assessment, charge, restriction or limitation of any kind, whether arising by agreement, operation of law or otherwise, except for those imposed by applicable federal and state securities laws or imposed by Agreement between Seller and the Company. Such Seller has the full power and authority to sell, transfer, convey, assign and deliver to the Company the Seller Shares, and upon delivery and payment for such Seller Shares at the Repurchase Closing, the Company shall acquire valid and unencumbered title to such Seller Shares.

2.2 Enforceability. This Agreement constitutes the valid and legally binding obligation of such Seller, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors' rights generally and (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

2.3 Governmental Consents. To such Seller's knowledge, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any foreign, federal, state or local governmental authority on the part of such Seller is required in connection with the consummation of the transactions contemplated by this Agreement.

 

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2.4 Compliance with Other Instruments. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby will not result in a material violation of, or default under, any instrument, judgment, order, writ, decree or contract known to such Seller, or an event that results in the creation of any lien, charge or encumbrance upon the Seller Shares. Such Seller has received as of the Repurchase Closing all consents or waivers necessary to transfer the Seller Shares to the Company and such transfer is not subject to any right of notice, first refusal, preemptive, tag-along or drag-along right or other comparable obligations or restrictions.

2.5 Litigation. There is no action, suit, proceeding or investigation pending or, to such Seller's knowledge, currently threatened that questions the validity of this Agreement, or the right of such Seller to enter into this Agreement or to consummate the transaction contemplated hereby.

2.6 Receipt of Information. Such Seller believes he has received all the information he considers necessary or appropriate for deciding whether to enter into this Agreement and perform the obligations set forth herein. Such Seller hereby represents that he has had an opportunity to ask questions and receive answers from the Company regarding the business, properties, prospects and financial condition of the Company, including, without limitation, any strategic transaction, public securities offering, private financing transaction (whether debt or equity), merger, consolidation, recapitalization, reclassification, reorganization, change of control transaction, sale of assets or securities, liquidation or similar transaction which have been, are being or may be contemplated by the Company. Such Seller hereby acknowledges that any future sale or purchase of shares of the Company's capital stock could be at a premium or a discount relative to the Per Share Purchase Price being paid to such Seller with respect to such shares, and that such sale or purchase could occur at any time or not at all.

2.7 Acknowledgement of Tax Disclosure. Such Seller acknowledges that the Company has advised him that there may be adverse tax consequences to such Seller in consummating the sale of Seller Shares. Seller also acknowledges that Company has advised Seller that (a) such tax consequences will vary with Seller's own personal circumstances, applicable state tax laws and, in some cases, local tax laws and (b) Seller should consult with his own tax advisor regarding all tax consequences relating to the sale of Seller Shares under this Agreement.

3. Representations and Warranties of the Company. The Company hereby represents and warrants that:

3.1 Authorization. The execution and delivery of this Agreement, the performance of all obligations of the Company hereunder, and the purchase of the Seller Shares by the Company hereunder, have been duly authorized. This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors' rights generally and (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

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3.2 Compliance with Other Instruments. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby will not result in a material violation of, or default under, the Amended and Restated Certificate of Incorporation or Bylaws of the Company (each as amended to date) or any instrument, judgment, order, writ, decree or material contract known to the Company to which the assets of the Company are subject.

4. Conditions to Repurchase Closings.

4.1 Conditions of Company's Obligations at the Repurchase Closing. The obligations of the Company under Section 1.1 and 1.2 of this Agreement are subject to the fulfillment on or before the applicable Repurchase Closing of each of the following conditions:

(a) Representations and Warranties. The representations and warranties of each Seller contained in Section 2 shall be true on and as of the applicable Repurchase Closing with the same effect as though such representations and warranties had been made on and as of such Repurchase Closing.

(b) Performance. Each Seller shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by such Seller on or before the applicable Repurchase Closing.

(c) Qualifications. All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful purchase of the Seller Shares pursuant to this Agreement shall be duly obtained and effective as of the applicable Repurchase Closing.

(d) Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the applicable Repurchase Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Company, and they shall have received all such counterpart original and certified or other copies of such documents as they may reasonably request.

(e) Board Approval. The Board shall have, for each payment, confirmed that the Company has sufficient cash available to effect the Repurchase and shall have approved the Repurchase Closing.

4.2 Conditions of Each Seller's Obligations at the Repurchase Closing. The obligations of each Seller to the Company under this Agreement are subject to the fulfillment on or before the applicable Repurchase Closing of each of the following conditions by the Company:

(a) Representations and Warranties. The representations and warranties of the Company contained in Section 3 shall be true on and as of the applicable Repurchase Closing with the same effect as though such representations and warranties had been made on and as of such Repurchase Closing.

 

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(b) Payment of Aggregate Repurchase Price; Performance. The Company shall have delivered the applicable Aggregate Repurchase Price to be paid to such Seller, less any applicable withholding, and the Company shall have performed and complied in all material respects with all other agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the applicable Repurchase Closing.

(c) Qualifications. All authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful purchase of the Seller Shares pursuant to this Agreement shall be duly obtained and effective as of the applicable Repurchase Closing.

5. Indemnity. Each Seller hereby agrees that such Seller shall, severally and not jointly, indemnify and hold harmless the Company, its affiliates, subsidiaries (direct and indirect), directors, officers, employees, agents lenders (and agents related thereto) and representatives (each, an "Indemnified Party") against any losses, claims, damages or liabilities to which an Indemnified Party may become subject, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any breach of the representations, warranties, covenants and agreements made by such Seller in connection with this Agreement.

6. Miscellaneous.

6.1 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.

6.2 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware as applied to agreements among Delaware residents entered into and to be performed entirely within Delaware.

6.3 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

6.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

6.5 Finder's Fee. Each party represents that it neither is nor will be obligated for any finders' fee or commission in connection with this transaction. Each party also represents that it has not entered into any agreements for which such party would be liable for finders' fees or commissions in connection with this transaction or any other contemplated transaction. Each party agrees to indemnify and hold harmless the other parties from any liability for any commission or compensation in the nature of a finders' fee (and the costs and expenses of

 

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defending against such liability or asserted liability) for which such party or any of its directors, stockholders, employees or representatives is responsible.

6.6 Amendment and Waivers. Any term of this Agreement may be amended only with the written consent of the Company and the Sellers. The observance of any term of this Agreement may be waived by the Company or any Seller (either generally or in a particular instance and either retroactively or prospectively) only if such waiver is in writing and signed by the party to be bound thereby.

6.7 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

6.8 Survival of Representations and Warranties. The representations, warranties and covenants made by each Seller shall survive the applicable Repurchase Closing. The representations and warranties made by each Seller herein shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of the Company.

6.9 Entire Agreement. This Agreement (including its Exhibits) constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings related to such subject matter.

6.10 Expenses. Irrespective of whether the Repurchase Closings are effected, the Company and each of the Sellers shall pay all costs and expenses that such party incurs with respect to the negotiation, execution, delivery and performance of this Agreement and the transactions hereby contemplated. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

6.11 Notices. All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be deemed delivered (a) three (3) business days after being sent by registered or certified mail, return receipt requested, postage prepaid or (b) one (1) business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery, in each case to the intended recipient as set forth below:

(a) If to the Company, at the address set forth below the Company's signature to this Agreement, or at such other address as may have been furnished in writing by the Company to the other parties hereto; or

(b) If to a Seller, at the address set forth below such Seller's signature to this Agreement, or at such other address as may have been furnished in writing by the Seller to the other parties hereto.

 

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(c) Any party may give any notice, request, consent or other communication under this Agreement using any other means (including, without limitation, personal delivery, messenger service, telecopy, first class mail or electronic mail), but no such notice, request, consent or other communication shall be deemed to have been duly given unless and until it is actually received by the party for whom it is intended. Any party may change the address to which notices, requests, consents or other communications hereunder are to be delivered by giving the other parties notice in the manner set forth in this Section 6.11.

(Signature Pages to Follow)

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

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Exhibit A

Schedule of Sellers

Seller		Number of Series A Shares Repurchased				Purchase Price of Series A Shares Repurchased				Number of Series B Shares Repurchased				Purchase Price of Series B Shares Repurchased				Aggregate Repurchase Price
ARH Family Partnership Ltd			59,251			$	118,863.44				70,266			$	186,612.45			$	305,475.89
Austin Ventures VIII, LP			1,296,888			$	2,601,687.02				125,668			$	333,749.08			$	2,935,436.10
Austin Ventures X, L.P.			16,133			$	32,364.42				1,030			$	2,735.48			$	35,099.90
Brett Shobe			2,844			$	5,705.35				1,315			$	3,492.38			$	9,197.73
Brian Sharples (Chloe Marie Sharples Trust)			217			$	435.33				13			$	34.53			$	469.86
Brian Sharples (Emma Jette Sharples Trust)			217			$	435.33				13			$	34.53			$	469.86
Brian Sharples (Hawken Drake Sharples Trust)			217			$	435.33				13			$	34.53			$	469.86
Carl Shepherd			12,835			$	25,748.30				4,399			$	11,682.87			$	37,431.17
Carsten Moller-Fuhrer			51,921			$	98,867.97				—			$	0.00			$	98,867.97
David Lack			5,487			$	11,007.48				1,762			$	4,679.52			$	15,687.00
Feroz Dewan			35			$	70.22				2			$	5.32			$	75.54
Find Us Faithful Foundation			43,216			$	86,695.62				2,758			$	7,324.70			$	94,020.32
Institutional Venture Partners XII, L.P.			5,786			$	11,607.30				369			$	980.00			$	12,587.30

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Seller		Number of Series A Shares Repurchased				Purchase Price of Series A Shares Repurchased				Number of Series B Shares Repurchased				Purchase Price of Series B Shares Repurchased				Aggregate Repurchase Price
Jan K. Voorhis, Trustee of the Jan & Patricia Van Voorhis Revocable Trust dated 4/13/93			9,382			$	18,821.24				—			$	0.00			$	18,821.24
Jerome L Galant			99			$	198.61				444			$	1,179.18			$	1,377.79
Joseph William Nicholson			122			$	244.75				8,765			$	23,278.09			$	23,522.84
Joshua 24:15 Partnership, Ltd.			640			$	1,283.91				40			$	106.24			$	1,390.15
Justin Halloran			12,633			$	25,343.07				7			$	18.60			$	25,361.67
Kerstin Fuhrer			51,921			$	98,867.97				—			$	0.00			$	98,867.97
Lee Fixel			18			$	36.11				1			$	2.66			$	38.77
Mary Song			1,563			$	3,097.56				—			$	0.00			$	3,097.56
Moose Pond Investments, LP			31,275			$	62,740.78				—			$	0.00			$	62,740.78
Philip Siegel			3,118			$	6,255.02				2,189			$	5,813.55			$	12,068.57
Redpoint Associates I, LLC			7,489			$	15,023.69				660			$	1,752.83			$	16,776.52
Redpoint Associates II, LLC			9,139			$	18,333.75				912			$	2,422.09			$	20,755.84
Redpoint Omega Associates, LLC			347			$	696.12				22			$	58.43			$	754.55
Redpoint Omega, L.P.			12,298			$	24,671.02				785			$	2,084.81			$	26,755.83
Redpoint Technology Partners A-1, L.P.			7,270			$	14,584.35				408			$	1,083.57			$	15,667.92

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Seller		Number of Series A Shares Repurchased				Purchase Price of Series A Shares Repurchased				Number of Series B Shares Repurchased				Purchase Price of Series B Shares Repurchased				Aggregate Repurchase Price
Redpoint Technology Partners Q-1, L.P.			45,493			$	91,263.51				2,557			$	6,790.89			$	98,054.40
Redpoint Ventures I, L.P.			292,089			$	585,959.75				25,744			$	68,370.92			$	654,330.67
Redpoint Ventures II, L.P.			395,273			$	792,957.17				39,464			$	104,808.50			$	897,765.67
Ross A Buhrdorf			118			$	236.72				6,575			$	17,461.89			$	17,698.61
Scott Shleifer			7			$	14.05				—			$	0.00			$	14.05
TCV Member Fund, L.P.			63			$	126.39				3			$	7.98			$	134.37
TCV VI, L.P.			2,809			$	5,635.14				179			$	475.39			$	6,110.53
TCV VII (A), L.P.			2,405			$	4,824.68				153			$	406.34			$	5,231.02
TCV VII, L.P.			4,632			$	9,292.26				295			$	783.47			$	10,075.73
Tiger Global II, L.P.			26			$	52.16				1			$	2.66			$	54.82
Tiger Global Master Fund, L.P.			527			$	1,057.22				33			$	87.65			$	1,144.87
Tiger Global Private Investment Partners V, L.P.			2,715			$	5,446.57				173			$	459.46			$	5,906.03
Tiger Global, L.P.			692			$	1,388.23				44			$	116.86			$	1,505.09
Trident Capital Fund-VI Principals Fund, L.L.C.			78			$	156.48				4			$	10.63			$	167.11
Trident Capital Fund-VI, L.P.			2,033			$	4,078.41				129			$	342.60			$	4,421.01

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Seller		Number of Series A Shares Repurchased				Purchase Price of Series A Shares Repurchased				Number of Series B Shares Repurchased				Purchase Price of Series B Shares Repurchased				Aggregate Repurchase Price
Totals			2,391,321			$	4,786,609.80				297,195			$	789,290.68			$	5,575,900.48