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EXHIBIT 4.3
STOCK RESTRICTION AGREEMENT
THIS AGREEMENT, made on the 15th day of April 1992, by and between CTA
INCORPORATED, a Colorado corporation (the "Company"), and each of the employees,
consultants or directors and other persons who wish to buy stock of CTA and
agrees to be bound by the terms hereof (each, a "Shareholder").
WHEREAS, the Company or another Shareholder wishes to sell to the
Shareholder, and the Shareholder wishes to purchase from the Company or such
other Shareholder, shares (the "Shares") of common stock, par value $.01 per
Share, of the Company (the "Common Stock"); and
WHEREAS, the Shareholder and the Company agree that it is in the best
interest of both parties for the Company to remain predominantly employee owned
and that, therefore, the Shares should be subject to certain restrictions set
forth herein.
NOW, THEREFORE, in consideration of the premises and for the benefit of
the Company, it is agreed by and between the parties as follows:
1. Restriction on Shares.
(a) The Company's Right to Repurchase on Termination of
Employment. To the extent that the Shareholder is an employee,
consultant or director of the Company (each, an "Employee"), if the
Employee's employment by the Company is terminated (whether by reason of
death, retirement, disability, resignation, discharge or any other
reason), then all Shares owned by the Employee shall be subject to the
Company's right of repurchase. The Company's right to repurchase shall
be exercised by mailing written notice to the Employee at his address of
record on the Company's stock record books within one year following the
termination of employment (such one year period shall commence on such
date of termination of employment and shall not be extended by accrued
vacation, sick days, or similar accruals). Such notice shall request
delivery of certificates representing the Shares owned by the Employee,
duly endorsed in blank or to the Company, free and clear of all liens,
claims, charges and encumbrances of any kind whatsoever. The price per
share for the repurchase shall be the then prevailing formula price
established by the Company for the Common Stock on the date of such
termination; provided, however, that in the event that such formula
price is less than the price paid by the Employee for any of his Shares,
the Company shall not repurchase such Shares without the Employee's
consent. The Company shall, in the event it exercises its right to
repurchase such Shares as provided in this Subparagraph 1(a), pay for
such Shares in cash as soon as practicable after receipt by the Company
of the certificate or certificates representing such Shares. If the
Company is unable to make such payment directly to the Employee, then
the Company may satisfy its obligation to make such payment by
depositing the purchase price within such one year period in an interest
bearing account for the benefit of the Employee and such Shares shall
thereby be deemed to have been transferred to the Company and no longer
outstanding, with all rights of the Employee with regard to such Shares
terminated. A determination by the Company not to repurchase any of the
Employee's shares shall in no event affect the validity of Subparagraph
1(b) or any other provisions hereof which shall remain binding on the
Shareholder.
(b) Other Rights of the Company to Repurchase. If at any time
the Shareholder desires to sell any Shares other than through the
limited market (the "Limited Market") maintained on behalf of the
Company by a registered broker-dealer, the Shareholder shall first give
notice to the Secretary of the Company containing:
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(i) A statement signed by the Shareholder notifying the Company
that the Shareholder desires to sell Shares of Common Stock and has
received a bona fide offer to purchase Shares.
(ii) A statement signed by the intended purchaser containing:
(A) the intended purchaser's full name, address and
taxpayer identification number;
(B) the number of Shares to be purchased;
(C) the price per Share to be paid;
(D) other terms under which the purchase is intended
to be made;
(E) a representation that the offer, under the terms
specified, is bona fide, and
(F) a representation that the intended purchaser
will enter into an agreement with the Company on
substantially the same terms as set forth
herein.
(iii) If the purchase price is payable in cash, in whole or in
part, a copy of a certified check, cashier's check or money order
payable to the Employee from the purchaser in the amount of the purchase
price which is to be paid in cash.
The Company shall thereupon have an option exercisable within thirty
(30) days of receipt of such notice by the Secretary to purchase all, but not
less than all, of the Shares specified in the notice at the offer price and upon
the same terms as set forth in the notice. Such option shall be exercised by the
Company by mailing written notice to the Shareholder at his address of record on
the Company's stock record books. In the event the Company does not exercise
such option, then the Shareholder may sell the shares specified in the notice
within thirty (30) days thereafter to the person specified in the notice, at the
price and upon the terms and conditions set forth therein. The Shareholder may
not sell such Shares to any other person, or at any different price, or on any
different terms without first reoffering such Shares to the Company.
(c) Election of Rights by the Company. In the event circumstances shall
occur which would ordinarily permit the company to exercise its rights under
either Subparagraph 1(a) or 1(b) at a time when the Company's rights under the
other Subparagraph have become and remain exercisable, the Company in its sole
discretion may elect which of such rights it shall exercise. The Company may
designate one or more nominees to purchase any Shares which it has the right to
purchase pursuant to Subparagraph 1(a) or 1(b), in lieu of purchasing such
Shares itself.
(d) Transfers. The Shareholder agrees not to sell, transfer, pledge,
hypothecate, assign, or otherwise, in any manner, dispose of any of the Shares
(other than through the Limited Market), or any right or interest therein,
without abiding with the provisions of Section 1(a) or 1(b) or the other
provisions hereof and any purported attempt to sell, transfer, pledge,
hypothecate, assign, or otherwise dispose of the Shares by the Employee shall be
null and void and without effect. No such transfer shall be made unless the
purchaser enters into an agreement with the Company on substantially the same
terms as set forth herein.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO TRANSFER, SALE
OR OTHER DISPOSITION OF ANY OF THE SHARES MAY BE EFFECTED UNLESS (I)
SUCH SALE, TRANSFER, OR OTHER
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DISPOSITION COMPLIES WITH THE FEDERAL SECURITIES LAWS AND ANY APPLICABLE
STATE SECURITIES OR BLUE SKY LAWS AND (II) THE TRANSFEREE OF SUCH SHARES
(INCLUDING ANY TRANSFEREE WHO IS AN EMPLOYEE OF THE COMPANY) AGREES IN
WRITING TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT.
(e) Lapse or Waiver of Restrictions.
(i) Lapse. All restrictions upon the Shares set forth in this
Paragraph 1(a) shall automatically lapse and be of no further force and effect
if:
(A) the Company makes an underwritten offering of its Common
Stock (or any class of securities convertible into any class of its
Common Stock) on a firm commitment basis to the general public (which
for purposes hereof shall not include an offering in which substantially
all of the Shares are intended for sale to officers, directors, and
employees of the Company); or
(B) the Company applies to have its Common Stock (or any class
of securities convertible into any class of its Common Stock) listed on
a national securities exchange.
(ii) The Company, acting in its sole discretion, may waive any or all of
the restrictions upon the Shares of Common Stock set forth in this Paragraph 1
in such circumstances as the Company deems appropriate, and such waiver may be
effective as to any or all of the Shares of Common Stock held by the
Shareholder.
(f) The Shareholder and the Company understand and agree that the
provisions of this Agreement shall only be applicable to the Shares of Common
Stock subject to this Agreement and all shares of capital stock that are issued
or paid to the Shareholder as a dividend, distribution, or otherwise with
respect to such Shares.
2. Legend. All stock certificates issued by the Company and all stock
certificates issued by or on behalf of the Company held by the Shareholder shall
have the following legend marked upon the face thereof:
"SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION, OR OTHER DISPOSITION
OF THESE SHARES IS RESTRICTED BY THE TERMS OF A STOCK RESTRICTION
AGREEMENT WHICH MAY BE EXAMINED AT THE OFFICE OF THE COMPANY."
3. Entire Agreement. This Agreement represents the entire Agreement
between the Company and the Shareholder with respect to the subject matter
hereof and supersedes any prior agreements, correspondence, or understandings
between them with respect to the subject matter hereof.
4. Advisors. The Shareholder has been advised by counsel of the
Employee's own choice with regard to the legal, tax, and other consequences of
this Agreement to the Shareholder and has not relied upon the Company or its
counsel with regard thereto.
5. Binding Effect. This Agreement shall be binding upon the personal
representatives, distributees, successors, and assigns of the Company and the
Shareholder.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
be considered one and the same instrument.
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7. Governing Law. This Agreement shall be governed by the laws of the
State of Colorado without regard to the conflict of laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CTA INCORPORATED
X.X. Xxxxx
President
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