Stock Repurchase Agreement - Scient Corp. and Robert Howe
Stock Repurchase Agreement
This Stock Repurchase Agreement is entered into as of December 22, 1998,
by Scient Corporation, a California corporation (the "Company"), and Robert Howe
("Howe").
Whereas, Howe holds more than 150,000 vested shares of the Company's
Common Stock (the "Common Shares").
Whereas, the Company on December 22, 1998, granted to Stephen Mucchetti
("Mucchetti") an option to purchase 150,000 Common Shares from the Company for
$1.60 per Common Share (the "Option").
Whereas, the Option will become exercisable in installments on January 1
of the years 2000, 2001 and 2002.
Whereas, Mucchetti will vest in all of the Common Shares subject to the
Option (the "Option Shares") on December 22, 2002, if his continuous service
with the Company does not terminate prior to such date.
Whereas, the parties have agreed that the Company will have the right to
purchase up to 150,000 Common Shares held by Howe for $1.60 per Common Share to
the extent that Mucchetti has both exercised his Option and vested in the
underlying Option Shares.
Whereas, this Agreement is being entered into to evidence the Company's
right to purchase such Common Shares from Howe (the "Right of Repurchase").
SECTION 1. RIGHT OF REPURCHASE.
(a) Scope of Repurchase Right. 150,000 of the Common Shares held by
Howe shall be subject to a right (but not an obligation) of repurchase by the
Company (the "Restricted Shares"). Howe may designate from time to time which
of his Common Shares shall be considered Restricted Shares, provided that the
number of Restricted Shares shall be 150,000 unless changed in accordance with
this Agreement.
(b) Condition Precedent to Exercise. The Right of Repurchase shall be
exercisable only during the 60-day period next following the later of (i) the
date when Mucchetti exercises all or any part of the Option and acquires
Option Shares or (ii) the date when Mucchetti vests in such Option Shares (the
"Notice Period"). If Mucchetti exercises a part of the Option, then the Right
of Repurchase shall be exercisable during the Notice Period with respect to a
number of Restricted Shares that is equal to the number of Option Shares
acquired by Mucchetti. The Right of Repurchase shall survive with respect to
the remaining Restricted Shares.
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(c) Lapse of Repurchase Right. The Right of Repurchase shall lapse to
the extent that the Option expires for any reason without having been
exercised. The Right of Repurchase shall also lapse to the extent that the
Company exercises its right to repurchase Option Shares from Mucchetti for a
price of $1.60 per Common Share (as adjusted from time to time in accordance
with the terms of such right).
(d) Repurchase Cost. If the Company exercises the Right of Repurchase,
it shall pay Howe $1.60 per Common Share (as adjusted under Subsection (f)
below) for each of the Restricted Shares being repurchased.
(e) Exercise of Repurchase Right. The Right of Repurchase shall be
exercisable only by written notice delivered to Howe prior to the expiration
of the Notice Period (unless the Right of Repurchase is deemed to have been
exercised as provided below). The notice shall set forth the date on which the
repurchase is to be effected. Such date shall not be more than 30 days after
the date of the notice. If the Company (i) has not exercised the Right of
Repurchase by delivering written notice to Howe on or before the last day of
the Notice Period and (ii) has not advised Howe in writing on or before the
last day of the Notice Period that it does not wish to exercise the Right of
Repurchase, then the Company shall automatically be deemed to have exercised
the Right of Repurchase on the last day of the Notice Period and the
repurchase shall be effected on the 30th day following the last day of the
Notice Period (or on the next following business day). The certificate(s)
representing the Restricted Shares to be repurchased shall, prior to the close
of business on the date specified for the repurchase, be delivered to the
Company properly endorsed for transfer. The Company shall, concurrently with
the receipt of such certificate(s), pay to Howe the purchase price determined
according to Subsection (d) above. Payment shall be made in cash or cash
equivalents.
(f) Additional Common Shares or Substituted Securities. In the event of
the declaration of a stock dividend, the declaration of an extraordinary
dividend payable in a form other than stock, a spin-off, a stock split, an
adjustment in conversion ratio, a recapitalization or a similar transaction
affecting the Company's outstanding securities without receipt of
consideration, any new, substituted or additional securities or other property
(including money paid other than as an ordinary cash dividend) which are by
reason of such transaction distributed with respect to any Restricted Shares
or into which such Restricted Shares thereby become convertible shall
immediately be subject to the Right of Repurchase. Appropriate adjustments to
reflect the distribution of such securities or property shall be made to the
number and/or class of the Restricted Shares. Appropriate adjustments shall
also, after each such transaction, be made to the price per share to be paid
upon the exercise of the Right of Repurchase in order to reflect any change in
the Company's outstanding securities effected without receipt of consideration
therefor; provided, however, that the aggregate purchase price payable for the
Restricted Shares shall remain the same.
(g) Termination of Rights as Stockholder. If the Company makes
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Restricted Shares to be repurchased in
accordance with this Section 1, then after such time the person from whom such
Restricted Shares are to be repurchased shall no longer have any
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rights as a holder of such Restricted Shares (other than the right to receive
payment of such consideration in accordance with this Agreement). Such
Restricted Shares shall be deemed to have been repurchased in accordance with
the applicable provisions hereof, whether or not the certificate(s) therefor
have been delivered as required by this Agreement.
(h) Escrow. The certificate(s) for the Restricted Shares shall be
deposited in escrow with the Company to be held in accordance with the
provisions of this Agreement. Any new, substituted or additional securities or
other property described in Subsection (f) above shall immediately be
delivered to the Company to be held in escrow. All regular cash dividends on
Restricted Shares (or other securities at the time held in escrow) shall be
paid directly to Howe and shall not be held in escrow. Restricted Shares,
together with any other assets or securities held in escrow hereunder, shall
be (i) surrendered to the Company for repurchase and cancellation upon the
Company's exercise of its Right of Repurchase or (ii) released to Howe to the
extent that the Common Shares are no longer Restricted Shares.
SECTION 2. RESTRICTIONS ON TRANSFER.
Howe shall not transfer, assign, encumber or otherwise dispose of any
Restricted Shares, except as provided in the following sentence. Howe may
transfer Restricted Shares (i) by beneficiary designation, will or intestate
succession or (ii) to Howe's spouse, children or grandchildren or to a trust
established by Howe for the benefit of Howe or Howe's spouse, children or
grandchildren, provided in either case that the transferee agrees in writing on
a form prescribed by the Company to be bound by all provisions of this
Agreement. If Howe transfers any Restricted Shares, then this Agreement shall
apply to the transferee to the same extent as to Howe. The Company shall not be
required to (i) transfer on its books any Restricted Shares that have been sold
or transferred in contravention of this Agreement or (ii) treat as the owner of
Restricted Shares, or otherwise to accord voting, dividend or liquidation rights
to, any transferee to whom Restricted Shares have been transferred in
contravention of this Agreement.
SECTION 3. SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided to the contrary, the provisions
of this Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns and be binding upon Howe and Howe's legal
representatives, heirs, legatees, distributees, assigns and transferees by
operation of law, whether or not any such person has become a party to this
Agreement or has agreed in writing to join herein and to be bound by the terms,
conditions and restrictions hereof.
SECTION 4. TAX ELECTION.
The imposition of the Right of Repurchase may result in adverse tax
consequences that may be avoided or mitigated by filing an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the "Code").
Such election may be filed only within 30 days after the imposition of the Right
of Repurchase. The form for making the Code
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Section 83(b) election is attached to this Agreement as an Exhibit. Howe
should consult with his tax advisor to determine the tax consequences of the
imposition of the Right of Repurchase and the advantages and disadvantages of
filing the Code Section 83(b) election. Howe acknowledges that it is his sole
responsibility, and not the Company's, to file a timely election under Code
Section 83(b), even if Howe requests the Company or its representatives to
make this filing on his behalf.
SECTION 5. LEGENDS.
All certificates evidencing Restricted Shares shall bear the following
legend, in addition to any legend(s) required for reasons not related to this
Agreement:
"The shares represented hereby may not be sold, assigned, transferred,
encumbered or in any manner disposed of, except in compliance with the
terms of a written Stock Repurchase Agreement between the Company and the
registered holder of the shares (or the predecessor in interest to the
shares). Such Agreement grants to the Company certain repurchase rights
upon the occurrence of certain events. The Secretary of the Company will
upon written request furnish a copy of such Agreement to the holder hereof
without charge."
SECTION 6. NOTICE.
Any notice required by the terms of this Agreement shall be given in
writing and shall be deemed effective upon personal delivery or upon deposit
with the United States Postal Service, by registered or certified mail, with
postage and fees prepaid. Notice shall be addressed to the Company at its
principal executive office and to Howe at the address that he most recently
provided to the Company.
SECTION 7. ENTIRE AGREEMENT.
This Agreement constitutes the entire contract between the parties
hereto with regard to the Right of Repurchase. It supersedes any other
agreements, representations or understandings (whether oral or written and
whether express or implied) that relate to the subject matter hereof.
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SECTION 8. CHOICE OF 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.
In Witness Whereof, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officer, as of the day and
year first above written.
Robert Howe: Scient Corporation
By:
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Title:
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EXHIBIT I
Section 83(b) Election
This statement is made under Section 83(b) of the Internal Revenue Code of 1986,
as amended, pursuant to Treasury Regulations Section 1.83-2.
(1) The taxpayer who performed the services is:
Name: Robert Howe
Address:
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Social Security No.:
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(2) The property with respect to which the election is made is 150,000 shares
of the Common Stock of Scient Corporation.
(3) The property was transferred on December 22, 1998.
(4) The taxable year for which the election is made is the calendar year 1998.
(5) The property is subject to a repurchase right pursuant to which the issuer
has the right to acquire the property from taxpayer for $1.60 per share if
a third party exercises an option to purchase shares of the issuer's Common
Stock from the issuer and vests in such shares. The issuer's repurchase
right lapses not later than December 21, 2008.
(6) The fair market value of such property at the time of transfer (determined
without regard to any restriction other than a restriction which by its
terms will never lapse) is $1.60 per share.
(7) The amount paid for such property is $1.60 per share.
(8) A copy of this statement was furnished to Scient Corporation, for whom
taxpayer rendered the services underlying the transfer of such property.
(9) This statement is executed on December __, 1998.
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Spouse (if any) Taxpayer
This election must be filed with the Internal Revenue Service Center with which
taxpayer files his Federal income tax returns and must be filed within 30 days
after the date of purchase. This filing should be made by registered or
certified mail, return receipt requested. Taxpayer must retain two copies of
the completed form for filing with his Federal and state tax returns for the
current tax year and an additional copy for his records.
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