EXHIBIT 10.24
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XXXXXX.XXX, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
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THIS RESTRICTED STOCK PURCHASE AGREEMENT ("Agreement") is made this July
__, 2004, by and between XXXXXX.XXX, INC., a Delaware corporation (the
"Corporation"), and GDA TECHNOLOGIES, INC., a California corporation (the
"Purchaser").
WHEREAS, the Corporation's Arkados, Inc. subsidiary ("Arkados") has
entered into a Silicon Product Development and Production Collaboration
Agreement with Purchaser dated July __, 2004 (the "Collaboration Agreement") in
which the corporation agreed to issue 150,000 shares to Purchaser (subject to
certain vesting);
WHEREAS, the Board of Directors of the Corporation is of the opinion that
the interests of the Corporation will be advanced by granting the Purchaser the
opportunity to purchase the Shares (as defined in Section 1 hereby), subject to
the vesting provisions of Section 3, thus providing the Purchaser with an
incentive for prompt performance and a more direct stake in the Corporation's
welfare and creating a closer relationship between the Purchaser's interests and
the interests of the Corporation;
WHEREAS, the Corporation is providing the Purchaser with a cash payment in
an amount equal to the purchase price for the purchase of the Shares (the "Cash
Payment");
WHEREAS, Purchaser acknowledges that but for the Confidential Information
provision of the Advisory Agreement, the Corporation would not have made
available the opportunity for Purchaser to purchase the Shares.
NOW, THEREFORE, in consideration of the purchase price set forth below and
the other conditions required hereunder, the parties agree as follows:
1. Stock Purchase. The Corporation hereby sells to the Purchaser and the
Purchaser hereby purchases 150,000 shares of common stock of the Corporation
(the "Shares") for a price of $.0001 per share, subject to the forfeiture and
non-transferability provisions set forth in Sections 2 and 4, respectively, and
the other terms and conditions set forth herein.
2. Forfeiture. Any Shares not yet vested pursuant to Section 3 hereof
shall, without any further action on the part of the Corporation, be immediately
forfeited (a "Forfeiture") and the holder of such Shares shall return such
Shares to the Corporation for the above purchase price per share.
In the event of any Forfeiture, the Corporation may cause the transfer and
registration of the forfeited shares into the name of the Corporation without
surrender of the certificate representing such Shares, and the Purchaser
appoints the Corporation and any officer as attorney-in-fact to execute all
stock powers or affidavits and cause the transfer and re-registrations of the
forfeited shares. The provisions of this Section 2 shall be binding upon
Purchaser and Purchaser's heirs, representatives, and assigns.
3. Vesting.
(a) 50% of the Shares shall be vested and released from Forfeiture on
the date this Agreement is executed.
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(b) 100% of the Shares shall vest upon the Corporation's receipt of a
duly executed certification ("Vesting Certification") of the chief executive
officer of Arkados to the effect that the Target has been achieved by Purchaser
at least 30 days prior to the Target Date (each as defined in the Collaboration
Agreement), a copy of which shall be mailed to Purchaser.
(c) The Shares shall be forfeited (i) upon the Corporation's receipt of
a duly executed certification of the chief executive officer of Arkados to the
effect that the Target has not been achieved 30 days prior to the Target Date
("Forfeiture Certification"), or (ii) July 31, 2005 if no certification has been
received by the Corporation on or before that date.
(d) The Purchaser agrees that a Vesting Certification or Forfeiture
Certification given in good faith by the chief executive officer of Arkados
shall be conclusive evidence of the contents thereof.
4. Restrictions. The Purchaser shall not transfer, sell, convey, exchange,
pledge any of the shares that may still be subject to forfeiture under the
Agreement, or otherwise grant a security interest in, or otherwise dispose of
any of such Shares (and any such disposition or attempted disposition shall be
void and of no force or effect whatsoever).
5. Legend. Certificates representing the Shares (and any shares received
in respect of the Shares as contemplated by Section 6) shall bear a legend
evidencing the restrictions against transferability set forth in this Agreement.
When and as the restrictions terminate, the Purchaser shall be entitled to have
the legend removed from certificates representing shares with respect to which
restrictions have terminated.
6. Adjustments and Certain Distributions. If, before the termination of
the restrictions hereunder on all the Shares, the Corporation shall have
effected one or more stock splits, stock dividends, or other increases of its
common stock outstanding without receiving consideration therefor, all of the
shares received by the Purchaser in respect of the Shares that are then subject
to the non-transferability and repurchase provisions set forth in Sections 2 and
3 shall also be held subject to such non-transferability and repurchase
provisions. In addition, any stock or other securities of any subsidiary of the
Corporation received by the Purchaser in respect of any Shares that are then
subject to the non-transferability and repurchase provisions hereunder shall
also be held subject to such non-transferability and repurchase provisions.
7. Rights and Privileges Inure to the Purchaser. This Agreement and the
rights and privileges conferred by this Agreement enure only to the Purchaser
and shall not be sold, assigned, transferred, conveyed, pledged, hypothecated,
encumbered, or donated in any way (whether by operation of law or otherwise) and
shall not be subject to execution, attachment, or similar process.
Notwithstanding the foregoing, if the Purchaser is a corporation, partnership or
other entity with a legal existence, the rights under this agreement may be
transferred to equity owners, directors, officers and employees of Purchaser
upon the execution of an assignment and assumption by such transferee in form
and substance reasonably acceptable to the Corporation.
8. Securities Law Matters. The Purchaser acknowledges, warrants, and
represents that he is acquiring the Shares for investment and not with a view to
distributing all or any part thereof in any transaction which would constitute a
"distribution" within the meaning of the Securities Act. The Purchaser
acknowledges that the Shares have not been registered under the Securities Act,
and the Corporation is under no obligation to file a registration statement with
the Securities and Exchange Commission with respect to the Shares, and that in
addition to the restrictions contained in this Agreement, no sale or transfer
may be made except in compliance with the Securities Act and applicable state
securities laws.
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9. Investor Qualification and Representation. Purchaser is able to bear
the economic risks of this investment and, consequently, without limiting the
generality of the foregoing, is able to hold the Shares for an indefinite period
of time and has a sufficient net worth and available funds to sustain a loss of
the undersigned's entire investment in the Shares. Purchaser (a) has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of its investment in the Shares; and (b) has had
the opportunity to ask questions of, and receive answers from, the Corporation
concerning the terms and conditions of the offering of the Shares and to obtain
additional information. Purchaser has been well advised regarding the risks of
investing in the Corporation. Purchaser has not relied on any other written or
oral statements made by the Corporation, its officers, or its directors.
10. Definitions. In addition to the terms defined elsewhere in this
Agreement, the following terms shall have the following meanings when used in
this Agreement.
"Board of Directors" means the board of directors of the Corporation.
"Person" means a natural person, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a governmental
entity or any department, agency, or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to the Corporation, any Person of which
securities or other ownership interests representing more than 50% of the
ordinary voting power are, at the time as of which any determination is being
made, owned or controlled by the Corporation or one or more Subsidiaries of the
Corporation or by the Corporation and one or more Subsidiaries of the
Corporation.
IN WITNESS WHEREOF, the parties have executed this Restricted Stock
Purchase Agreement on the date first above written.
XXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, CEO
GDA Technologies, Inc.
By: Xxxx Xxxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxxx
Title:
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