BREACH OF
ANY AGREEMENT, CONTRACT OR INSTRUMENT TO WHICH EXECUTIVE IS A PARTY OR ANY
JUDGMENT, ORDER OR DECREE TO WHICH EXECUTIVE IS SUBJECT;
(VI)
EXECUTIVE IS NOT A PARTY TO OR BOUND BY ANY OTHER EMPLOYMENT
AGREEMENT, NONCOMPETE AGREEMENT OR CONFIDENTIALITY AGREEMENT WHICH CONFLICTS
WITH THE OBLIGATIONS SET FORTH IN THIS AGREEMENT OR IN THE EMPLOYMENT AGREEMENT;
AND
(VII)
EXECUTIVE IS A RESIDENT OF THE STATE OF COLORADO.
(D)
AS AN INDUCEMENT FOR THE COMPANY TO COMMIT TO ISSUE THE EXECUTIVE
SHARES TO EXECUTIVE, AND AS A CONDITION THERETO, EXECUTIVE ACKNOWLEDGES AND
AGREES THAT NEITHER ANY FUTURE ISSUANCE OF CAPITAL STOCK OF THE COMPANY TO
EXECUTIVE NOR ANY PROVISION CONTAINED HEREIN SHALL ENTITLE EXECUTIVE TO REMAIN
IN THE EMPLOYMENT OF THE COMPANY, OR ANY SUBSIDIARY OF THE COMPANY, OR AFFECT
THE RIGHT OF THE COMPANY OR ANY SUBSIDIARY TO TERMINATE EXECUTIVE'S EMPLOYMENT
AT ANY TIME FOR ANY REASON, SUBJECT TO THE TERMS AND CONDITIONS OF THE
EMPLOYMENT AGREEMENT.
2.
VESTING OF SHARES.
(A)
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2(B) BELOW, THE EXECUTIVE
SHARES PURCHASED HEREUNDER WILL BECOME VESTED IN ACCORDANCE WITH THE FOLLOWING
SCHEDULE, IF AS OF EACH SUCH DATE EXECUTIVE IS STILL EMPLOYED BY THE COMPANY OR
ANY SUBSIDIARY OF THE COMPANY:
Date
Cumulative Percentage of
Executive Shares to be Vested
1st Anniversary of this Agreement
20
%
2nd Anniversary of this Agreement
40
%
3rd Anniversary of this Agreement
60
%
4th Anniversary of this Agreement
80
%
5th Anniversary of this Agreement
100
%
(B)
NOTWITHSTANDING THE FOREGOING OR ANYTHING HEREIN TO THE CONTRARY,
UPON THE OCCURRENCE OF A SALE OF THE COMPANY, ALL EXECUTIVE SHARES WHICH HAVE
NOT YET BECOME VESTED SHALL BECOME VESTED AT THE TIME OF SUCH SALE OF THE
COMPANY (SUCH PORTION BEING REFERRED TO
2
HEREIN AS THE "ACCELERATED SHARES"); PROVIDED, HOWEVER, AND SUBJECT TO AND
UNLESS OTHERWISE PROVIDED FOR UNDER THE STOCKHOLDERS AGREEMENT BY AND AMONG THE
COMPANY, THE INVESTORS, THE EXECUTIVE AND CERTAIN OTHER PARTIES, THAT EXECUTIVE
SHALL NOT TRANSFER ANY INTEREST IN ANY ACCELERATED SHARES UNLESS AND UNTIL SUCH
TIME AS THE INVESTORS SHALL HAVE RECEIVED CASH DIVIDENDS OR OTHER CASH PROCEEDS
RESULTING FROM ANY DISTRIBUTIONS ON OR DISPOSITIONS OF ANY PREFERRED STOCK OR
COMMON STOCK IN AN AGGREGATE AMOUNT EQUAL TO THE PRODUCT OF (I) TWO (2),
MULTIPLIED BY (II) THE AGGREGATE PURCHASE PRICE PAID BY THE INVESTORS TO THE
COMPANY FOR ALL PREFERRED STOCK, COMMON STOCK AND OTHER EQUITY INTERESTS OF THE
COMPANY PURCHASED BY THE INVESTORS (BUT NOT IN ANY EVENT INCLUDING AMOUNTS
COMMITTED BUT NOT YET CONTRIBUTED TO THE CAPITAL OF THE COMPANY). EXECUTIVE
SHARES WHICH HAVE BECOME VESTED HEREUNDER ARE REFERRED TO HEREIN AS "VESTED
SHARES," AND ALL OTHER EXECUTIVE SHARES ARE REFERRED TO HEREIN AS "UNVESTED
SHARES."
(C)
THE EXECUTIVE SECURITIES SHALL AT ALL TIMES BE SUBJECT TO SUCH
RESTRICTIONS OR LIMITATIONS WITH RESPECT TO THE TRANSFER THEREOF THAT MAY BE
CONTAINED HEREIN OR IN THE STOCKHOLDERS AGREEMENT OR AS OTHERWISE PROVIDED BY
LAW.
3.
REPURCHASE OPTION.
(A)
IN THE