Exh. 10.2
JONES SODA CO.
— RESTRICTED STOCK PURCHASE
AGREEMENT —
No.
This Restricted Stock Purchase
Agreement (“Agreement”) is made and entered into as of
the date of award set forth below (“Date of Award”) by
and between Jones Soda Co., a Washington corporation
(“Company”), and the participant named below
(“Participant”). Capitalized terms not defined herein
shall have the respective meanings ascribed to them in the
Company’s 2002 Stock Option and Restricted Stock Plan
(“Plan”). A copy of the Plan has been provided to
Participant.
Participant’s Name:
Participant’s
Address:
Total Number of Shares:
Purchase Price per Share:
Date of Award:
Vesting Commencement
Date:
1. Purchase and Sale of the
Shares . Subject to the terms and conditions of this Agreement,
the Company agrees to sell to Participant and Participant agrees to
purchase from the Company at the Closing (as defined below) the
total number of shares of Common Stock of the Company set forth
above (“Shares”) at the purchase price per share set
forth above (“Purchase Price”). All references to the
number of Shares and the Purchase Price of the Shares in this
Agreement shall be adjusted to reflect any stock split, stock
dividend or other similar change in the Shares which may be made
after the date of this Agreement.
2. Closing .
(a) The purchase and sale of the
Shares shall occur at a closing (the “Closing”) to be
held on the date first set forth above, or at any other time
mutually agreed upon by the Company and Participant. The Closing
will take place at the principal office of the Company or at such
other place as shall be designated by the Company. At the Closing,
Participant shall deliver the aggregate Purchase Price set forth
above to the Company by cash or personal or cashiers’ check
payable to the Company, and the Company will issue, as promptly
thereafter as practicable, a stock certificate, registered in the
name of the Participant, reflecting
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the Shares. Notwithstanding the
foregoing, Participant may not purchase any Shares under this Award
unless such sale and issuance complies with all relevant provisions
of applicable laws and regulations and the requirements of any
stock exchange upon which the Company common stock is then
listed.
(b) In addition, at Closing
Participant shall execute and deliver to the Company (i) two
copies of the Assignment Separate From Certificate (with the date
and the number of Shares left blank) substantially in the form
attached to this Agreement as Exhibit A and
(ii) one copy of the Joint Escrow Instructions substantially
in the form attached to this Agreement as Exhibit B
.
3. Repurchase Option
.
(a) In the event the Participant
ceases to be an employee, consultant or director of the Company
(each, a “Service Provider”) for any or no reason,
including without limitation, by reason of Participant’s
death, Disability, resignation or involuntary termination, with or
without Cause, the Company shall upon the date of such termination
(as reasonably fixed and determined by the Company) have the right,
but not the obligation (the “Repurchase Option”), for a
period of 90 days from such date (or such longer period as may be
agreed to by Participant and the Company), to repurchase any Shares
which have not yet vested as of the termination date. In addition,
in the event Participant is terminated for Cause, the Company shall
have a Repurchase Option for a period of 90 days from the date of
termination (or such longer period as may be agreed to by
Participant and the Company), to repurchase all Shares, both vested
and unvested. The Shares to which the Repurchase Option relates
pursuant to this Section 3(a) shall be referred to as the
“Subject Shares”.
(b) The Company may exercise its
Repurchase Option and repurchase all or any of the Subject Shares
at a price per share equal to the Purchase Price (the
“Repurchase Price”). The Repurchase Option shall be
exercised by the Company by delivering written notice to the
Participant or, in the event of the Participant’s death or
disability, Participant’s executor, which shall identify the
number of Subject Shares to be repurchased and shall notify
Participant of the time, place and date for settlement of such
purchase, which shall be scheduled by the Company within the term
of the Repurchase Option. The Company shall be entitled to pay for
any Subject Shares repurchased pursuant to its Repurchase Option at
the Company’s option by check or by offset against any
indebtedness owing to the Company by Participant, or by a
combination of both. Upon delivery of such notice and the payment
of the aggregate Repurchase Price, the Subject Shares being
repurchased shall be cancelled and shall return to the
Company’s authorized but unissued capital stock, and all
rights and interests therein or relating thereto shall be
terminated.
(b) The Company in its sole
discretion may designate and assign one or more employees,
officers, directors, stockholders, affiliates, successors or
assigns of the Company or other persons or organizations to
exercise all or a part of the Company’s Repurchase Option to
purchase all or a part of the Subject Shares.
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4. Vesting; Release of Shares
From Repurchase Option . So long as Participant’s
continuous status as a Service Provider has not yet terminated in
each such instance, the Shares will vest and be released from the
Repurchase Option [INSERT VESTING SCHEDULE].
5. Acceleration of Vesting upon
Corporate Transaction . In the event of a Corporate Transaction
(as defined in the Plan), unless otherwise determined by the Board
or Committee at the time of grant or by amendment (with the
Participant’s consent) all outstanding Shares shall become
fully vested and released from the Repurchase Option.
6. Investment Representations
. In connection with the purchase of the Common Stock, Participant
represents to the Company the following:
(a) Participant is aware of the
Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Shares.
Participant is acquiring the Shares for investment for his / her
own account only and not with a view to, or for resale in
connection with, any “distribution” thereof within the
meaning of the Securities Act.
(b) Participant can properly
evaluate the merits and risks of an investment in the Shares and
can protect his / her own interests in this regard, whether by
reason of his / her own business and financial expertise, the
business and financial expertise of his / her professional
advisors, or his / her preexisting business or personal
relationship with the Company or any of its officers, directors or
controlling persons. Participant realizes that the purchase of the
Shares involves a high degree of risk, and that the Company’s
future prospects are uncertain. Participant is able to hold the
Shares indefinitely if required, and is able to bear the loss of
his / her entire investment in the Shares.
(c) Participant acknowledges that
unless and until the Company files a registration statement under
the Securities Act with respect to the Shares, the Shares are
“restricted securities” and the Shares may not be
resold unless such proposed resale is registered or pursuant to an
available exemption under the Securities Act. The Company is under
no obligation to register the Shares or any subsequent proposed
resale of the shares. The certificate evidencing the Shares will be
imprinted with a legend which prohibits the transfer of the Shares
unless such transfer is registered or such registration is not
required in the opinion of counsel for the Company.
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7. Restrictions on Transfer
.
(a) Restrictive Legends. Participant
understands and agrees that the Company shall cause the legends set
forth below, or substantially equivalent legends, to be placed upon
any certificate(s) evidencing ownership of the Shares, together
with any other legends that may be required by the Company or by
applicable state or federal securities laws:
“THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO A REPURCHASE OPTION HELD BY THE
ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE RESTRICTED STOCK
PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF
THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL
OFFICE OF THE ISSUER. ANY TRANSFER OR ATTEMPTED TRANSFER OF ANY
SHARES SUBJECT TO SUCH OPTION IS VOID WITHOUT THE PRIOR EXPRESS
WRITTEN CONSENT OF THE COMPANY.”
(b) Stop-Transfer Notices .
Participant agrees that to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate “stop
transfer” instructions to its transfer agent.
(c) Refusal to Transfer . The
Company shall not be required (i) to transfer on its books any
Shares that have been sold or otherwise transferred in violation of
any of the provisions of this Agreement or (ii) to treat as
owner of such Shares or to accord the right to vote or pay
dividends to Participant or other transferee to whom such Shares
shall have been so transferred.
(d) Unvested Shares .
Notwithstanding anything to the contrary in this Agreement, neither
any Unvested Shares nor any beneficial interest in such Unvested
Shares shall be sold, gifted, transferred, encumbered or otherwise
disposed of in any way (whether by operation of law or otherwise)
by the Participant.
8. Escrow . As security for
the faithful performance of this Agreement, Participant agrees to
deliver, immediately upon receipt of the certificate(s) evidencing
the Shares, and authorizes and directs the Company to cause the
stock certificates evidencing the Shares to be delivered, to the
Secretary of the Company or its designee (the “Escrow
Agent”). These documents shall be held by the Escrow Agent
pursuant to the Joint Escrow Instructions of the Company and
Participant set forth in Exhibit B to this Agreement,
which instructions are incorporated into this Agreement by this
reference, and which instructions shall also be delivered to the
Escrow Agent after the Closing Date.
9. Rights as Shareholder .
Subject to the provisions of this Agreement, Participant shall
exercise all rights and privileges of a shareholder of the Company
with respect to the Shares from and after the date that Participant
delivers a fully executed copy of this Agreement (including all
exhibits and attachments hereto) and full payment for the Shares to
the Company, including the right to vote the Shares, even if some
or all of the Shares have not yet vested and been released from the
Company’s Repurchase Option. From the date of the
Company’s exercise of its Repurchase Option, Participant
shall have no further rights as a holder of the Subject Shares
repurchased by the Company, other than the right to receive payment
for the Subject Shares so repurchased in accordance with the
provisions of this Agreement.
10. Tax Consequences .
Participant has reviewed with his / her own tax advisors the
federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement.
Participant is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents.
Participant understands that
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Participant (and not the Company) shall
be
