EXHIBIT 10.1
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PACIFIC BIOMETRICS, INC.
-- RESTRICTED STOCK PURCHASE AGREEMENT --
No. 2007-001
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 Pacific Biometrics, Inc., a Delaware 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 2005 Stock
Incentive Plan ("PLAN"). A copy of the Plan has been provided to
Participant.
Participant's Name:
Ronald R. Helm
Participant's Address:
16625 Redmond Way #M-7
Redmond, WA 98052
Total Number of Shares:
200,000
Purchase Price per Share:
$0.00
Date of Award:
October 19, 2007
Vesting Commencement Date:
October 19, 2007
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 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.
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(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 / FORFEITURE OF UNVESTED SHARES.
(a) In the event that (i) Participant ceases to be an employee
or consultant of the Company as a result of his or her termination
for Cause or
resignation, or (b) Participant, if a non-employee director on the
Board of
Directors of the Company, is not re-elected or resigns as a
director of the
Company (in either case other than upon Change of Control) (each
such event, a
"TERMINATION") the Company shall have the right, but not the
obligation (the
"REPURCHASE OPTION"), for a period of 90 days from the date of such
termination
(as reasonably fixed and determined by the Company) (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 (the "UNVESTED
SHARES"). In the
event that the Purchase Price for the Shares is $0.00, then upon
any termination
(as set forth in Section 3(a)) the Unvested Shares shall
immediately as of the
date of termination and automatically, without any additional
action by Company
or Participant, be forfeited and promptly returned to the
Company
("FORFEITURE"). Notwithstanding anything to the contrary contained
in this
Section 3(a), the Company's Repurchase Option and Forfeiture shall
not apply to
a termination by reason of Participant's death, Disability,
termination of
employment by the Company without Cause or upon a Change of
Control.
(b) The Company may exercise its Repurchase Option and
repurchase all or any of the Unvested Shares at a price per share
equal to the
lesser of (x) the fair market value of the shares at the time the
Repurchase
Option is exercised, as determined by the Company's board of
directors and (y)
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 Unvested 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 Unvested
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 Company shall become the legal and
beneficial
owner of the Unvested Shares being repurchased and all rights and
interests
therein or relating thereto and the Company shall have the right to
retain and
transfer to its own name the number of Unvested Shares being
repurchased by the
Company.
(c) 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 Unvested Shares.
4. VESTING; RELEASE OF SHARES FROM REPURCHASE OPTION /
FORFEITURE.
Except as provided in Section 5 for acceleration of vesting, so
long as there
has been no termination of Participant's status as an employee,
consultant or
director, the Shares will vest and will be
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released from the Repurchase Option and Forfeiture upon the third
anniversary of
the Vesting Commencement Date and no Shares shall vest prior to
such date.
5. ACCELERATION OF VESTING UPON CHANGE OF CONTROL, DEATH,
DISABILITY,
OR TERMINATION WITHOUT Cause. In the event of a Change of Control
(as defined in
the Plan), death, Disability or termination of employment by the
Company without
Cause, unless otherwise determined by the Board or Committee at the
time of
grant or by amendment (with the Participant's consent), all
outstanding Unvested
Shares shall become fully vested and released from the Repurchase
Option and
Forfeiture.
6. INVESTMENT REPRESENTATIONS. In connection with the purchase of
the
Shares, 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, doctors 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 hear 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.
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
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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 STOCKHOLDER. Subject to the provisions of this
Agreement,
Participant shall exercise all rights and privileges of a
stockholder 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 or Forfeiture,
Participant shall
have no further rights
