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EXHIBIT 10.6
AMENDMENT TO RESTRICTED STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO RESTRICTED STOCK PURCHASE AGREEMENT (this "STOCK
AMENDMENT") is entered into as of November 24, 1999 (the "EFFECTIVE DATE") by
and between Xxxxx X. Xxxxxxxx ("PURCHASER") and EPS Solutions Corporation, a
Delaware corporation (the "COMPANY").
A. Purchaser and the Company entered into that certain Restricted Stock
Purchase Agreement dated as of September 1, 1999 (the "STOCK AGREEMENT")
pursuant to which Purchaser acquired 857,142 shares of Series A Common Stock of
the Company (the "SHARES") that are subject to restrictions and vest based upon
continued employment of Purchaser with the Company or its subsidiaries.
B. In connection with Purchaser's assumption of the duties of Chief
Executive Officer and in order to reward Purchaser for his leadership in
transitioning management of the Company from its founders, Purchaser and the
Company desire to amend certain provisions of the Stock Agreement as set forth
herein.
THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and the Company hereby agree as follows:
1. Schedule 4 to the Stock Agreement is hereby amended to read in
its entirety as set forth on Schedule 4 attached hereto.
2. Purchaser hereby makes to the Company with respect to the
Shares and the Stock Agreement the same acknowledgement as is set forth in the
last sentence of Section 4.5 of the Restricted Stock Purchase Agreement entered
into by Purchaser and the Company as of November 24, 1999.
3. This Stock Amendment, and the Stock Agreement as amended
hereby, supersede all prior agreements related to the subject matter hereof and
thereof.
4. This Stock Amendment may be executed in counterparts, each of
which shall be an original but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment to Employment Agreement as of the date set forth above.
PURCHASER EPS SOLUTIONS CORPORATION
/s/ XXXXX X. XXXXXXXX By: /s/ XXXX X. XXXXXXX
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Xxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxx
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Title: EVP/CFO
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SCHEDULE 4 TO
AMENDMENT TO RESTRICTED STOCK PURCHASE AGREEMENT
VESTING SCHEDULE
The Shares consist of 857,142 "EMPLOYMENT SHARES."
EMPLOYMENT SHARES
Subject to the terms and conditions described in this Agreement, the
Restrictions applicable to the Employment Shares will lapse and the Employment
Shares will vest in installments as described below, provided, however, that
except as set forth in this Schedule 4, in order for Employment Shares eligible
to vest for any Measurement Period to vest, the Purchaser must have remained an
employee of the Employer from the date hereof through the last day of that
Measurement Period.
On the last day of each of the Measurement Periods set forth in the
table below, if the Purchaser has remained an employee of the Employer from the
date hereof through the last day of such Measurement Period, the Restrictions
will lapse with respect to such number of Employment Shares as is equal to the
product of the Vesting Percentage corresponding to that Measurement Period and
the total number of Employment Shares.
VESTING
MEASUREMENT PERIOD PERCENTAGE
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September 1, 1999 - December 31, 1999 50%
January 1, 2000 - December 31, 2000 25%
January 1, 2001 - December 31, 2001 25%
VESTING UPON CERTAIN TERMINATION OF EMPLOYMENT
If employment of the Purchaser with the Employer is terminated by the
Employer without "Cause" or by the Purchaser with "Good Reason" (each as defined
in the Employment Agreement), the Restrictions will immediately lapse and
vesting will immediately occur with respect to all of the Shares not already
vested. If the employment of the Purchaser is terminated as a result of the
Purchaser's "Disability" (as defined in the Employment Agreement) or as a result
of the Purchaser's death, the Restrictions will immediately lapse with respect
to half of the Shares not then already vested.
FRACTIONAL SHARES
Fractional vested Shares will be carried forward and combined to
constitute whole vested Shares that can be issued, or repurchased by the Company
or its assignee at fair market value on the date of repurchase.
