Exhibit 10.15
INCENTIVE SHARE PURCHASE
AGREEMENT
This INCENTIVE SHARE PURCHASE
AGREEMENT (this “ Agreement ”) is made as of
, 2008 (“ Effective
Date ”) among CT Technologies Holdings, LLC, a Delaware
limited liability company (the “ Company ”),
ABRY Partners V, L.P., a Delaware limited liability company (the
“ Investor ”) and
(“ Executive ”). Unless otherwise provided in
this Agreement, capitalized terms used herein shall have the
meanings set forth in Section 9.
WHEREAS, Executive desires to
purchase from the Company, and the Company desires to sell to
Executive, certain of the Company’s Series B Shares (“
Series B Shares ”).
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follow:
Section 1. Issuance .
Subject to the terms and conditions of this Agreement, on the
Effective Date the Company will sell and issue to Executive, and
Executive will purchase from the Company, (i) ___________
Series B-1 Shares for a cash purchase price of $0.00 per Series B-1
Share, and (ii) ___________ Series B-2 Shares for a cash
purchase price of $0.00 per Series B-2 Share. Each of the Series
B-1 Shares and Series B-2 Shares issued hereunder are referred to
herein as the “ Executive Shares .” The issuance
of any Series B Shares hereunder is conditioned upon Executive
becoming party to the LLC Agreement and the Members
Agreement.
Section 2. Representations
and Warranties of the Executive . In connection with the
purchase and sale of the Executive Shares hereunder, Executive
represents and warrants to the Company that the following
statements are true on the date hereof and will be true on the
Effective Date as if made on such date:
(a) The Executive Shares to be
acquired by Executive pursuant to this Agreement will be acquired
for Executive’s own account and not with a view to, or
intention of, distribution thereof in violation of the Securities
Act, any applicable state securities laws or the terms of this
Agreement, the LLC Agreement or the Members Agreement, and the
Executive’s interests in such shares will not be disposed of
in contravention of any such laws or agreements.
(b) Executive is able to bear the
economic risk of the investment in the Executive Shares for an
indefinite period of time because the Executive Shares are subject
to the transfer restrictions contained herein, the LLC Agreement
and the Members Agreement and have not been registered under the
Securities Act.
(c) Executive has had an opportunity
to ask questions and receive answers concerning the terms and
conditions of the offering of the Executive Shares and has had full
access to such other information concerning the Company as
Executive has requested. Executive has reviewed, or has had an
opportunity to review, copies of the following documents:
(i) the LLC Agreement, (ii) the Members Agreement and
(iii) the Registration Rights Agreement. Copies of the
foregoing documents are attached hereto as Exhibits A ,
B and C .
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(d) Each of this Agreement and the
Related Agreements constitutes the legal, valid and binding
obligation of Executive, enforceable against Executive in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and limitations on the
availability of equitable remedies, and the execution, delivery,
and performance of this Agreement or any of the Related Agreements
by Executive does not and will not conflict with, violate, or cause
a breach of any agreement, contract, or instrument to which
Executive is a party or any judgment, order, or decree to which
Executive is subject.
(e) Executive is an
“Accredited Investor” as defined in Regulation D
under the Securities Act and Executive considers himself to be an
experienced and sophisticated investor and to have such knowledge
and experience in financial and business matters as are necessary
to evaluate the merits and risks of an investment in the Executive
Shares. Executive acknowledges and understands that an investment
in the Executive Shares involves substantial risks and Executive is
able to bear the economic risks of an investment in the Executive
Shares pursuant to the terms hereof, including the complete loss of
Executive’s investment in the Executive Shares.
(f) As a condition precedent to each
issuance of the Executive Shares pursuant to this Agreement,
Executive shall execute and deliver to the Company and the Internal
Revenue Service (the “ IRS ”) a timely, valid
election under Section 83(b) of the Code (the “ 83(b)
Election ”) in the form attached hereto as Exhibit
D . Executive understands that under Section 83(b) of the
Code, regulations promulgated thereunder, and certain IRS
administrative announcements, in the absence of an effective
election under Section 83(b) of the Code, the excess of the
fair market value of the Executive Shares on the date on which any
forfeiture restrictions applicable to such Executive Shares lapse
over the price paid for such shares (which is $0.00 for such share)
is reportable as ordinary income at that time. For this purpose,
the term “forfeiture restrictions” means the
restrictions on transferability and the vesting conditions imposed
under Section 4 and Section 5 hereof, respectively.
Executive understands that (i) in making the 83(b) Election,
Executive may be taxed at the time the Executive Shares are
acquired hereunder to the extent the fair market value of the
Executive Shares exceeds the purchase price for such shares and
(ii) in order to be effective, the 83(b) Election must be
filed with the IRS within 30 days after the date upon which the
Executive Shares were purchased hereunder. Executive hereby
acknowledges that: (x) the foregoing description of the tax
consequences of the 83(b) Election is not intended to be complete
and, among other things, does not describe state, local or foreign
income and other tax consequences; (y) none of the Company,
the Investor or any of the Company’s or the Investor’s
respective affiliates, officers, employees, agents or
representatives (a “ Related Person ”) has
provided or is providing Executive with tax advice regarding the
83(b) Election or any other matter, and the Company and the
Investor have urged Executive to consult Executive’s own tax
advisor with respect to income taxation consequences of purchasing,
holding and disposing of the Executive Shares; and (z) none of
the Company, the Investor or any Related Person has advised
Executive to rely on any determination by it or its representatives
as to the fair market value specified in the 83(b) Election and
will have no liability to Executive if the actual fair market value
of the Executive Shares on the date hereof exceeds the amount
specified in the 83(b) Election.
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(g) None of the Company, the
Investor or any Related Person has made any representation or
warranty, express or implied, as to the future performance of the
Company or the present or future value of the Executive Shares to
be purchased by Executive. Executive further acknowledges that:
(i) all forecasts, projections or illustrations of amounts
that might be realized as a result of Executive’s purchase of
the Executive Shares that the Company, the Investor or a Related
Person shared with Executive (collectively, “
Illustrations ”), if any, were purely hypothetical;
(ii) none of the Company, the Investor or any Related Person
intended for Executive to rely upon such Illustrations in the
process of making an investment decision, and (iii) Executive
has not relied on such Illustrations in the process of making an
investment decision.
Section 3. Representations
and Warranties of the Company . In connection with the purchase
and sale of the Executive Shares hereunder, the Company represents
and warrants to Executive that the following statements are true on
the date hereof and will be true on the Effective Date as if made
on such date:
(a) Organization, Limited
Liability Company Power . The Company is a limited liability
company duly organized, validly existing and in good standing under
the laws of the State of Delaware. The Company possesses all
requisite power and authority necessary to own and operate its
properties, to carry on its businesses as presently conducted and
as proposed to be conducted and to carry out the transactions
contemplated by this Agreement.
(b) Executive Shares Duly Issued;
Fully Paid . When issued pursuant to this Agreement, all of the
Executive Shares will be duly authorized, validly issued, fully
paid and non-assessable and will have been issued by the Company in
compliance with applicable federal and state securities
laws.
(c) Authorization;
Enforceability . The execution, delivery and performance by the
Company or its officers of this Agreement and the Related
Agreements and the offer, sale and issuance of the Executive Shares
hereunder have been duly authorized by the Company. This Agreement
and the Related Agreements each constitutes a valid and binding
obligation of the Company, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and limitations on the
availability of equitable remedies.
(d) Capitalization .
Immediately after the consummation of the transactions contemplated
under Section 1 hereof, the equity capitalization of the
Company will be as set forth on Schedule 1 attached
hereto.
Section 4. Vesting . The
Executive Shares acquired by Executive pursuant to this Agreement
will “vest” as provided in this Section 4. The
provisions in this Section 4 will be in all respects subject
to the provisions in Section 5.
(a) General . Subject to
Section 4(c), as of any date the number of Executive Shares of
each series of Shares issued to Executive pursuant to
Section 1 that will be “ Vested Shares ”
will equal the total number of Executive Shares in such series
multiplied by the percentage for such date set forth in the
attached Schedule 2 . As of any date, the term “
Unvested Shares ” means the Executive Shares that are
not Vested Shares.
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(b) Acceleration upon Sale of
Company . Notwithstanding Section 4(a), all of the
Executive Shares will become Vested Shares upon a Sale of the
Company if Executive is an employee of the Company or any
Subsidiary of the Company at the time such Sale of the Company is
consummated.
(c) Termination of Vesting .
Notwithstanding Sections 4(a) and 4(b), if Executive ceases to be
employed by the Company or any of its Subsidiaries prior to a Sale
of the Company, then vesting will cease, with the effect that from
and after the date of such cessation the percentage of the
Executive Shares of each series of Shares issued to Executive
pursuant to Section 1 that will be Vested Shares will be the
percentage of such shares that constitute Vested Shares as
determined pursuant to Section 4(a) above as of the date such
employment ceased, whether or not a Sale of the Company occurs
thereafter.
(d) Transfer . Executive may
transfer Vested Shares or Unvested Shares only as provided in the
Members Agreement or Section 5 of this Agreement. Furthermore,
except as provided in the Members Agreement and Section 5 of
this Agreement, Executive may not agree to offer or sell, grant any
call option with respect to, pledge, hypothecate, borrow against,
grant a lien, security interest or other encumbrance in or on,
dispose of or enter into any swap or derivative transaction with
respect to any Vested Shares or Unvested Shares or any interest
therein without the prior written consent of the Board. Any
attempted or purported transfer, sale, grant, pledge, hypothecation
or other agreement in violation of this Agreement shall be void
ab initio .
(e) Rights as a Member .
Executive shall be the record owner of the Executive Shares until
or unless such Executive Shares are forfeited or repurchased
pursuant to Section 5 hereof, and as record owner shall be
entitled to all rights granted to owners of Series B
Shares.
Section 5. Repurchase of
Shares.
(a) Repurchase Option for
Executive Shares . If Executive ceases to be employed by the
Company or any of its Subsidiaries (the “ Termination
” of Executive), all of the Executive Shares held by the
Executive (or Executive’s permitted transferees) as of the
date of Termination that are Vested Shares shall be subject to
repurchase by the Company and the Investor pursuant to the terms
and conditions set forth in this Section 5. All Unvested
Shares held by the Executive (or Executive’s permitted
transferees) as of the date of Termination shall expire and be
immediately forfeited and canceled in their entirety as of the date
of Termination and shall no longer be deemed to be outstanding for
any purpose under the LLC Agreement.
(b) Purchase Price for Vested
Shares . The purchase price for each Vested Share that is
subject to the repurchase provisions set forth in this
Section 5 (an “ Eligible Vested Share ”)
shall be the Fair Market Value (as defined below) for such share as
of the date of the Termination; provided that if the
Termination results from the Company’s or a
Subsidiary’s Termination of Executive’s employment for
Cause, then each Vested Share shall expire and be immediately
forfeited and canceled in its entirety. The “ Fair Market
Value ” of any Vested Share on any date means the amount
determined by the Board in its good faith judgment as the amount
that would be received by the holder of such Vested Share if all of
the equity securities of the Company were sold to a buyer in a
single transaction and the proceeds from such
transaction
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were allocated to the holders of equity
securities of the Company as if the proceeds were distributed in a
liquidation of the Company pursuant to the LLC Agreement;
provided , however , that if the holder of such
Vested Shares disputes the Board’s determination of Fair
Market Value (the “ Disputing Party ”) and the
Disputing Party and the Board are unable to reach agreement as to
the Fair Market Value within a reasonable period of time, the
Company and the Disputing Party shall seek an independent appraisal
of such Fair Market Value by an independent appraiser experienced
in valuing securities such as the Executive Shares and mutually
agreeable to the Company and the Disputing Party, and the
determination of such appraiser shall be final and binding upon the
Company, the Investor and the Disputing Party. The cost and expense
of such appraisal shall be paid 50% by the Company and 50% by the
Disputing Party; provided , that the Company shall pay for
the entire cost and expense of such appraisal if the Company or
Investor, as the case may be, rescinds the applicable Company
Repurchase Notice or Supplemental Vested Repurchase Notice (each as
defined below) in accordance with this Agreement, as the case may
be.
(c) Company Option – Vested
Shares . In the event of the Termination of Executive’s
employment with the Company or its subsidiaries, the Company may
elect to purchase all or any portion of the Eligible Vested Shares
by delivering written notice (the “ Company Repurchase
Notice ”) to the holder or holders of the Vested Shares
during the period beginning on the day after the date of
Termination of the Executive and ending on the 90
th day after the Termination of the Executive (the
“ Repurchase Period ”). The Company Repurchase
Notice shall set forth the Board’s determination of the Fair
Market Value of the Vested Shares, the number of Vested Shares to
be acquired by the Company from each holder of Vested Shares, the
aggregate consideration to be paid for such shares and the time and
place for the closing of the transaction. At any time prior to the
closing of such transaction, the Company may rescind the Company
Repurchase Notice for any reason (including for no reason at all)
without liability to the holders of Vested Shares. The shares to be
repurchased by the Company shall first be satisfied to the extent
possible from the Vested Shares held by the Executive at the time
of delivery of the Company Repurchase Notice. If the number of
Vested Shares then held by the Executive is less than the total
number of Vested Shares that the Company has elected to purchase,
the Company shall purchase the remaining Vested Shares to be
purchased from the other holder(s) of Vested Shares under this
Agreement, pro rata according to the number of Vested Shares
held by such other holder(s) at the time of delivery of such
Company Repurchase Notice (determined as close as practicable to
the nearest whole share). If for any reason the Company has not
elected to purchase all of the Vested Shares pursuant to this
Section 5(c), the Company shall send written notice (the
“ No-Purchase Notice ”) of that election to the
Investor and the Company prior to the end of the Repurchase
Period.
(d) Investor Option –
Vested Shares . If the Company has not elected to purchase all
of the Vested Shares pursuant to Section 5(c) above, the
Investor shall be entitled to purchase all or any portion of the
Eligible Vested Shares that are not elected to be purchased by the
Company (the “ Available Vested Shares ”). The
Investor may elect to purchase any or all of the Available Vested
Shares by giving written notice (the “ Supplemental Vested
Repurchase Notice ”) to the holder or holders of the
Vested Shares at any time prior to the later to occur of
(i) the end of the Repurchase Period and (ii) the
30 th
day after the day on which the
Company delivered the Company Repurchase Notice or the No-Purchase
Notice, as applicable, to the Company and the holders of Available
Vested Shares. The Supplemental Vested Repurchase
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Notice shall set forth the number of Available
Vested Shares to be acquired from each holder of Available Vested
Shares, the aggregate consideration to be paid for such shares and
the time and place for the closing of the transaction. At any time
prior to the closing of such transaction, the Investor may rescind
the Supplemental Vested Repurchase Notice for any reason (including
for no reason at all) without liability to the holders of Available
Vested Shares. The shares to be repurchased by the Investor shall
first be satisfied to the extent possible from the Available Vested
Shares held by the Executive at the time of delivery of the
Supplemental Vested Repurchase Notice. If the number of Available
Vested Shares then held by the Executive is less than the total
number of Available Vested Shares that the Investor has elected to
purchase, the Investor shall purchase the remaining Available
Vested Shares to be purchased from the other holder(s) of Available
Vested Shares under this Agreement, 9pro rata according to
the number of Available Vested Shares held by such other holder(s)
at the time of delivery of such Supplemental Vested Repurchase
Notice (determined as close as practicable to the nearest whole
share).
(e) Closing of Repurchase .
The closing of the purchase of such Executive Shares pursuant to
Section 5(c) or 5(d) above shall take place on the date
designated in the Company Repurchase Notice or the Supplemental
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