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Exhibit 10.30
SUPER MICRO COMPUTER, INC.
STOCK OPTION EXERCISE NOTICE
AND
RESTRICTED STOCK PURCHASE AGREEMENT
This Agreement (" Agreement ") is made as of
August 26, 2008 (the " Purchase Date "), by and between
Super Micro Computer, Inc., a Delaware corporation (the "
Company "), and Charles Liang (" Purchaser ").
1. Exercise of Option . Subject to the terms and
conditions hereof, Purchaser hereby exercises his or her option to
purchase 925,000 shares of the Common Stock (the " Shares ")
of the Company granted to Purchaser on December 9, 1998 (the "
Option ") and evidenced by the Nonstatutory Stock Option
Agreement entered into between the Company and Purchaser on
December 9, 1998 (the " Option Agreement "). The Option
exercise price is $0.20 and $0.375 per Share (the " Per Share
Exercise Price "), and the total purchase price for the Shares
is $285,625.00 (the " Purchase Price "). As subsequently
used in this Agreement, the term " Shares " refers to the
purchased Shares and all securities received in addition to or in
replacement of the Shares pursuant to stock dividends or stock
splits, all securities received in replacement of the Shares in a
merger, consolidation, reorganization, reincorporation,
recapitalization, reclassification or similar change in the capital
structure of the Company, and all new, substituted or additional
securities or other property to which Purchaser becomes entitled by
reason of Purchaser’s ownership of the Shares.
2. Time, Place and Method of Exercise . The
purchase and sale of the Shares under this Agreement shall occur at
the principal office of the Company simultaneously with the
execution and delivery of this Agreement on the Purchase Date,
accompanied by an Assignment Separate from Certificate duly
endorsed (with the date and number of shares blank) in the form
attached to this Agreement. Payment of the Purchase Price shall be
effected by means of a "net exercise" procedure, pursuant to which
(a) the Company shall reduce the number of Shares otherwise
issuable to Purchaser upon the exercise of the Option by the
largest whole number of Shares having a Fair Market Value that does
not exceed the Purchase Price, and (b) Purchaser shall pay to
the Company in cash the remaining balance of the Purchase Price not
satisfied by such reduction in the number of whole Shares to be
issued. For this purpose, the " Fair Market Value " of
Shares shall be determined by the closing price of a share of
Common Stock of the Company on the Purchase Date as reported on the
Nasdaq Stock Market. On the Purchase Date, the Company will issue
to Purchaser a certificate representing the net number of Shares
remaining following such reduction (the " Net Shares "),
which shall be determined in accordance with the following
formula:
N = X(A-B)/A, where
"N" = the number of Net Shares to be issued to Purchaser upon
exercise of the Option (rounded down to the nearest whole
number);
"X" = the total number of Shares with respect to
which Purchaser has elected to exercise the Option;
"A" = the Fair Market Value of one (1) share of the Common
Stock of the Company determined on the Purchase Date; and
"B" = the Per Share Exercise Price, as set forth above.
Following such net exercise procedure, the number of Shares
remaining subject to the Option, if any, shall be reduced by the
sum of (i) the number of Net Shares issued to Purchaser and
(ii) the number of Shares deducted by the Company for payment
of the Purchase Price.
3. Vesting of Net Shares .
(a) Normal Vesting . Except as provided by
Section 3(b), Purchaser hereby acknowledges and agrees that,
notwithstanding anything contained in the Option Agreement to the
contrary, the Net Shares acquired by Purchaser pursuant to this
Agreement shall initially be entirely unvested and subject to both
the Unvested Share Reacquisition Right described in Section 4
and the restrictions on the transfer of Shares described in
Section 5. The Net Shares shall become Vested Shares as
follows:
Except as otherwise provided by this Agreement, provided that
Purchaser’s Service has not terminated prior to the
applicable Vesting Date, one fifth (1/5) of the total number
of Net Shares shall become Vested Shares on the first trading day
of each of the first five (5) calendar years commencing after
the Purchase Date (each of which shall be a " Vesting Date
").
For purposes of determining the number of Vested Shares
following an Ownership Change Event, credited Service shall include
all Service with any business entity which is a member of the
Company Group at the time the Service is rendered, whether or not
such business entity is a member of the Company Group both before
and after the Ownership Change Event.
(b) Acceleration of Vesting upon Certain Events .
Subject to Section 3(c), in the event of (i) the
Involuntary Termination of Purchaser or (ii) the consummation
of a Change in Control (provided that Purchaser’s Service has
not terminated prior to such Change in Control), the vesting of the
Net Shares shall be accelerated in full, such that the total number
of Net Shares which have not previously become Vested Shares shall
be deemed Vested Shares effective as of the date of
Purchaser’s Involuntary Termination or immediately prior to
the effective time of the Change in Control, as the case may
be.
(c) Federal Excise Tax Under Section 4999 of the
Code .
(i) Excess Parachute Payment . In the event that
any acceleration of vesting pursuant to this Agreement and any
other payment or benefit received or to be received by Purchaser
would subject Purchaser to any excise tax pursuant to
Section 4999 of the Code due to the characterization of such
acceleration of vesting, payment or benefit as an excess parachute
payment under Section 280G of the Code, the amount of any
acceleration of vesting called for under this Agreement, together
with such other payments and benefits, shall not exceed the amount
which results in the greatest after-tax benefit to Purchaser.
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(ii) Determination by Independent
Accountants . Upon the occurrence of any event that might
reasonably be anticipated to give rise to the acceleration of
vesting under Section 3(b) (an " Event ") and a
resulting excise tax pursuant to Section 4999 of the Code, the
Company shall promptly request a determination in writing by
independent public accountants selected by the Company (the "
Accountants ") of the amount of such acceleration of
vesting, if any, that would result in the greatest after-tax
benefit to Purchaser. Unless the Company and Purchaser otherwise
agree in writing, the Accountants shall determine and report to the
Company and Purchaser no later than ten (10) business days
following the date of the Event the amount of such acceleration of
vesting, which, taking into account the other payments and benefits
to which Purchaser is entitled, would produce the greatest
after-tax benefit to Purchaser. The Company shall promptly cause
that portion, if any, of the acceleration of vesting under
Section 3(b) which exceeds the amount producing the greatest
after-tax benefit to Purchaser to be rescinded and to be void ab
initio . For the purposes of such determination, the
Accountants may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the
Code. The Company and Purchaser shall furnish to the Accountants
such information and documents as the Accountants may reasonably
request in order to make their required determination. The Company
shall bear all fees and expenses the Accountants may reasonably
charge in connection with their services contemplated by this
Section 3(c)(ii).
4. Unvested Share Reacquisition Right .
(a) Grant of Unvested Share Reacquisition Right .
In the event that (a) Purchaser’s Service is terminated,
or, (b) Purchaser, Purchaser’s legal representative, or
other holder of shares acquired pursuant to this Agreement,
attempts to sell, exchange, transfer, pledge, or otherwise dispose
of (other than pursuant to an Ownership Change Event) any shares
which are not Vested Shares (" Unvested Shares "), the
Company shall automatically reacquire the Unvested Shares, and
Purchaser shall not be entitled to any payment therefor (the "
Unvested Share Reacquisition Right ").
(b) Ownership Change Event, Dividends, Distributions and
Adjustments . Upon the occurrence of an Ownership Change
Event, a dividend or distribution to the stockholders of the
Company paid in shares of Common Stock or other property, or any
other adjustment upon a change in the capital structure of the
Company, any and all new, substituted or additional securities or
other property (other than regular, periodic dividends paid on
Common Stock pursuant to the Company’s dividend policy) to
which Purchaser is entitled by reason of Purchaser’s
ownership of Unvested Shares shall be immediately subject to the
Unvested Share Reacquisition Right and included in the terms
"Shares" and "Unvested Shares" for all purposes of the Unvested
Share Reacquisition Right with the same force and effect as the
Unvested Shares immediately prior to the Ownership Change Event,
dividend, distribution or adjustment, as the case may be.
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5. Restrictions on Transfer of Shares
. No Shares may be sold, exchanged, transferred, assigned,
pledged, hypothecated or otherwise disposed of, including by
operation of law, in any manner which violates any of the
provisions of this Agreement and, except pursuant to an Ownership
Change Event, until the date on which such shares become Vested
Shares, and any such attempted disposition shall be void. The
Company shall not be required (a) to transfer on its books any
Shares which will have been transferred in violation of any of the
provisions set forth in this Agreement or (b) to treat as
owner of such Shares or to accord the right to vote as such owner
or to pay dividends to any transferee to whom such Shares will have
been so transferred. In order to enforce its rights under this
Section, the Company shall be authorized to give a stop transfer
instruction with respect to the Shares to the Company’s
transfer agent.
6. Escrow .
(a) Appointment of Agent . To ensure that Shares
subject to the Unvested Share Reacquisition Right will be available
for reacquisition, Purchaser and the Company hereby appoint the
Secretary of the Company, or any other person designated by the
Company, as their agent and as attorney-in-fact for Purchaser (the
" Agent ") to hold any and all Unvested Shares and to sell,
assign and transfer to the Company any such Unvested Shares
reacquired by the Company pursuant to the Unvested Share
Reacquisition Right. Purchaser understands that appointment of the
Agent is a material inducement to make this Agreement and that such
appointment is coupled with an interest and is irrevocable. The
Agent shall not be personally liable for any act the Agent may do
or omit to do hereunder as escrow agent, agent for the Company, or
attorney in fact for Purchaser while acting in good faith and in
the exercise of the Agent’s own good judgment, and any act
done or omitted by the Agent pursuant to the advice of the
Agent’s own attorneys shall be conclusive evidence of such
good faith. The Agent may rely upon any letter, notice or other
document executed by any signature purporting to be genuine and may
resign at any time.
(b) Establishment of Escrow . Purchaser authorizes
the Company to deposit the Unvested Shares with the Company’s
transfer agent to be held in book entry form, and Purchaser agrees
to deliver to and deposit with the Agent each certificate, if any,
evidencing the Shares and an Assignment Separate from Certificate
with respect to such book entry shares and each such certificate
duly endorsed (with date and number of Shares blank) in the form
attached to this Agreement, to be held by the Agent under the terms
and conditions of this Section 6 (the " Escrow "). Upon
the occurrence of an Ownership Change Event, a dividend or
distribution to the stockholders of the Company paid in shares of
Common Stock or other property (other than regular, periodic
dividends paid on Common Stock pursuant to the Company’s
dividend policy), or any other adjustment upon a change in the
capital structure of the Company in the character or amount of any
outstanding stock of the corporation the stock of which is subject
to the provisions of this Agreement, any and all new, substituted
or additional securities or other property to which Purchaser is
entitled by reason of his or her ownership of the Shares that
remain, following such Ownership Change Event, dividend,
distribution or change in capital structure, subject to the
Unvested Share Reacquisition Right shall be immediately subject to
the Escrow to the same extent as the Shares immediately before such
event. The Company shall bear the expenses of the Escrow.
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(c) Delivery of Shares to Participant
. The Escrow shall continue with respect to any Shares for so
long as such Shares remain subject to the Unvested Share
Reacquisition Right. Upon termination of the Unvested Share
Reacquisition Right with respect to Shares, the Company shall so
notify the Agent and direct the Agent to deliver such number of
Shares to Purchaser. As soon as practicable after receipt of such
notice, the Agent shall cause to be delivered to Purchaser the
Shares specified by such notice, and the Escrow shall terminate
with respect to such Shares.
7. Tax Matters .
(a) Tax Withholding .
(i) In General . At the time this Agreement is
executed, or at any time thereafter as requested by the Company,
Purchaser hereby authorizes withholding from payroll and any other
amounts payable to Purchaser, and otherwise agrees to make adequate
provision for, any sums required to satisfy the federal, state,
local and foreign tax (including any social insurance) withholding
obligations of the Company Group, if any, which arise in connection
with the Shares, including, without limitation, obligations arising
upon (a) the transfer of Shares to Purchaser, (b) the
lapsing of any restriction with respect to any Shares, or
(c) the transfer by Purchaser of any Shares. The Company shall
have no obligation to deliver the Shares or to release any Shares
from the Escrow
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