Exhibit 10.23
S TOCK R ESTRICTION A GREEMENT
T HIS S TOCK R ESTRICTION A GREEMENT is
entered into as of November 7, 2002, by and among NBT
Technology, Inc., a Delaware corporation (the
“Company”), Steven McCanne (“McCanne”) and
Steven McCanne and Tamara R. White, Trustees of the McCanne Family
Trust dated July 8, 2002 and successor Trustees thereunder
(the “Stockholder”).
R ECITALS
WHEREAS, the Company and McCanne
entered into that certain Stock Purchase Agreement dated as of
May 23, 2002 (the “Stock Purchase Agreement”)
pursuant to which McCanne purchased five million
(5,000,000) shares of Common Stock of the Company (the
“Purchased Shares”) at $0.001 per Share (the
“Purchase Price”) for an aggregate purchase price of
five thousand dollars ($5,000.00); and
WHEREAS, pursuant to the Stock
Purchase Agreement, the Purchased Shares were fully vested and not
subject to repurchase by the Company; and
WHEREAS, McCanne transferred the
Purchased Shares to the Stockholder pursuant to that certain Stock
Transfer Agreement, dated October 4, 2002, by and among the
Company, McCanne and the Stockholder; and
WHEREAS, in order to induce certain
investors to purchase shares of Series A Preferred Stock of the
Company, the Stockholder hereby agrees to the imposition of
contractual restrictions with respect to the Purchased Shares, and
the Stockholder and the Company hereby agree that this Agreement
shall govern the right of the Company to repurchase the Purchased
Shares under the circumstances specified herein; and
WHEREAS, capitalized terms not
defined above are defined in Section 9 of this
Agreement.
NOW, THEREFORE, in consideration of
the mutual promises and covenants set forth herein, the parties
hereby agree as follows:
SECTION 1. RIGHT OF
REPURCHASE.
(a) Scope of Repurchase Right
. Until they vest in accordance with Subsection (b) below, the
Purchased Shares shall be Restricted Shares and shall be subject to
the Company’s Right of Repurchase. The Company, however, may
decline to exercise its Right of Repurchase or may exercise its
Right of Repurchase with respect to a portion of the Restricted
Shares. The Company may exercise its Right of Repurchase only
during the Repurchase Period following the termination of
McCanne’s Service. The Right of Repurchase may be exercised
automatically under Subsection (d) below. If the Right of
Repurchase is exercised, the Company shall pay the Stockholder an
amount equal to the Purchase Price for each of the Restricted
Shares being repurchased.
(b) Lapse of Repurchase Right
. The Right of Repurchase shall lapse with respect to the first 25%
of the Purchased Shares when McCanne completes 12 months of
continuous Service after the Vesting Commencement Date. The Right
of Repurchase shall lapse with respect to an additional 2.0833% of
the Purchased Shares when McCanne completes each month of
continuous Service thereafter. In addition, provided that McCanne
continues Service with the Company, the Right of Repurchase shall
lapse on an accelerated basis as set forth below:
(i) If McCanne dies or his Service
is terminated by the Company without Cause within the first 12
months of Service measured from the Vesting Commencement Date, then
the Right of Repurchase shall lapse with respect to 25% of the
Purchased Shares.
(ii) If the Company is subject to a
Change in Control, then the Right of Repurchase shall lapse with
respect to an additional 25% of the Purchased Shares and the
remaining Restricted Shares shall continue to vest in monthly
installments as set forth under Section 1(b) above.
(iii) If McCanne is subject to an
Involuntary Termination within 12 months following such Change in
Control, then in addition to the acceleration set forth under
subsection (ii) above, the Right of Repurchase shall lapse
with respect to an additional 25% of the Purchased
Shares.
(c) Escrow . Upon execution
of this Agreement, the certificate(s) for Restricted Shares shall
be deposited in escrow with the Company to be held in accordance
with the provisions of this Agreement. Any additional or exchanged
securities or other property described in Subsection (f) below
shall immediately be delivered to the Company to be held in escrow.
All ordinary cash dividends on Restricted Shares (or on other
securities held in escrow) shall be paid directly to the
Stockholder and shall not be held in escrow. Restricted Shares,
together with any other assets held in escrow under this Agreement,
shall be (i) surrendered to the Company for repurchase upon
exercise of the Right of Repurchase or the Right of First Refusal
or (ii) released to the Stockholder upon request to the extent
that the Purchased Shares have ceased to be Restricted Shares (but
not more frequently than once every six months). In any event, all
Purchased Shares that have ceased to be Restricted Shares, together
with any other vested assets held in escrow under this Agreement,
shall be released within 180 days after the earlier of (i) the
termination of McCanne’s Service or (ii) the lapse of
the Right of First Refusal.
(d) Exercise of Repurchase
Right . The Company shall be deemed to have exercised its Right
of Repurchase automatically for all Restricted Shares as of the
commencement of the Repurchase Period, unless the Company during
the Repurchase Period notifies the holder of the Restricted Shares
pursuant to Section 6 that it will not exercise its Right of
Repurchase for some or all of the Restricted Shares. During the
Repurchase Period, the Company shall pay to the holder of the
Restricted Shares the purchase price determined under
Subsection (a) above for the Restricted Shares being
repurchased. Payment shall be made in
cash or cash equivalents and/or by canceling
indebtedness to the Company incurred by the Stockholder in the
purchase of the Restricted Shares. The certificate(s) representing
the Restricted Shares being repurchased shall be delivered to the
Company properly endorsed for transfer.
(e) Termination of Rights as
Stockholder . If the Right of Repurchase is exercised in
accordance with this Section 1 and the Company makes available
the consideration for the Restricted Shares being repurchased, then
the person from whom the Restricted Shares are repurchased shall no
longer have any rights as a holder of the Restricted Shares (other
than the right to receive payment of such consideration). Such
Restricted Shares shall be deemed to have been repurchased pursuant
to this Section 1, whether or not the certificate(s) for such
Restricted Shares have been delivered to the Company or the
consideration for such Restricted Shares has been
accepted.
(f) Additional or Exchanged
Securities and Property . In the event of a merger or
consolidation of the Company with or into another entity, any other
corporate reorganization, a stock split, the declaration of a stock
dividend, the declaration of an extraordinary dividend payable in a
form other than stock, a spin-off, an adjustment in conversion
ratio, a recapitalization or a similar transaction affecting the
Company’s outstanding securities, any securities or other
property (including cash or cash equivalents) that are by reason of
such transaction exchanged for, or distributed with respect to, any
Restricted Shares shall immediately be subject to the Right of
Repurchase. Appropriate adjustments to reflect the exchange or
distribution of such securities or property shall be made to the
number and/or class of the Restricted Shares. Appropriate
adjustments shall also be made to the price per share to be paid
upon the exercise of the Right of Repurchase, provided that the
aggregate purchase price payable for the Restricted Shares shall
remain the same. In the event of a merger or consolidation of the
Company with or into another entity or any other corporate
reorganization, the Right of Repurchase may be exercised by the
Company’s successor.
(g) Transfer of Restricted
Shares . The Stockholder shall not transfer, assign, encumber
or otherwise dispose of any Restricted Shares without the
Company’s written consent, except as provided in the
following sentence. The Stockholder may transfer Restricted Shares
to one or more members of McCanne’s Immediate Family or to a
trust established by the Stockholder or McCanne for the benefit of
McCanne and/or one or more members of McCanne’s Immediate
Family, provided in either case
