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EXHIBIT 99.5
EARLY EXERCISE STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made by and between ALLAYER COMMUNICATIONS, a
California corporation (the "Corporation"), and _________________("Purchaser").
WITNESSETH:
WHEREAS, Purchaser holds an INCENTIVE/NONSTATUTORY stock option to
purchase shares of common stock of the Corporation pursuant to the Corporation's
1997 Equity Incentive Plan (the "Plan") which Purchaser desires to exercise; and
WHEREAS, Purchaser wishes to take advantage of the early exercise
provision of his option and therefore to enter into this Agreement;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Purchaser hereby agrees to purchase from the Corporation, and the
Corporation hereby agrees to sell to Purchaser, an aggregate of _________ shares
of the common stock (the "Stock") of the Corporation, for an exercise price of
$_____ per share (total exercise price: ___________________________($ )),
payable in cash.
The closing hereunder shall occur at the offices of the Corporation on the date
of this Agreement or at such other time and place as the parties may mutually
agree upon in writing.
At the closing, Purchaser shall deliver three (3) stock assignments in the form
of Exhibit B duly endorsed (with date and number of shares left blank), joint
escrow instructions (the "Joint Escrow Instructions") in the form of Exhibit C,
duly executed by Purchaser, and the total exercise price in cash.
At the closing or as soon thereafter as practicable, the Corporation shall
deliver to the Escrow Agent (as defined in paragraph 8 below) share certificates
for all of the Stock that is to be subject to the Purchase Option (as defined in
paragraph 2 below), and shall deliver share certificates to Purchaser for all of
the Stock, if any, that is not to be subject to the Purchase Option.
2. In accordance with the provisions of section 408(b) of the California
General Corporation Law, the Stock to be purchased by Purchaser pursuant to this
Agreement shall be subject to the following option ("Purchase Option"):
(a) In the event that Purchaser shall cease to be an employee of
the Corporation for any reason (including his death), or no reason, with or
without cause, the Purchase Option may be exercised. The Corporation shall have
the right at any time within the ninety (90) day period after Purchaser's
termination of service with the Company and all Related Companies or such longer
period as may be agreed to by the Company and Purchaser (for example, for
purposes of satisfying the requirements of Section 1202(c)(3) of the Internal
Revenue Code) to purchase from Purchaser or his personal representative, as the
case may be, at the price per share paid by Purchaser pursuant to this Agreement
("Option Price"), up to but not
1.
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exceeding the number of shares of the Stock shown on Exhibit A hereto which is
incorporated herein by this reference.
(b) In addition, and without limiting the foregoing Purchase
Option, if at any time during the term of the Purchase Option, there occurs: (a)
a dissolution or liquidation of the Corporation; (b) a merger or consolidation
involving the Corporation in which the Corporation is not the surviving
corporation; (c) a reverse merger in which the Corporation is the surviving
corporation but the shares of the Corporation's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of other securities, cash or otherwise; or
(d) any other capital reorganization in which more than fifty percent (50%) of
the shares of the Corporation entitled to vote are exchanged, then: (i) if there
will be no successor to the Corporation, the Corporation shall have the right to
exercise its Purchase Option as to all or any portion of the Stock then subject
to the Purchase Option set forth above to the same extent as if Purchaser's
employment by the Corporation had ceased on the date preceding the date of
consummation of said event or transaction, or (ii) the Purchase Option may be
assigned to any successor of the Corporation, and the Purchase Option shall
apply if Purchaser shall cease for any reason to be an employee of such
successor on the same basis as set forth above. In that case, references herein
to the "Corporation" shall be deemed to refer to such successor.
(c) The Corporation shall be entitled to pay for any shares
purchased pursuant to its Purchase Option at the Corporation's option in cash,
by offset against any indebtedness owing to the Corporation by Purchaser, or a
combination of both.
(d) As used herein, employment with the Corporation shall
include employment with an affiliate of the Corporation.
(e) This Agreement is not an employment contract and nothing in
this Agreement shall be deemed to create in any way whatsoever any obligation on
the part of the Purchaser to continue in the employ of the Corporation, or of
the Corporation to continue Purchaser in the employ of the Corporation.
3. The Purchase Option may be exercised by giving written notice of
exercise delivered or mailed as provided in paragraph 14. Upon providing such
notice and payment or tender of the purchase price, the Corporation shall become
the legal and beneficial owner of the Stock being purchased and all rights and
interests therein or related thereto.
4. If from time to time during the term of the Purchase Option there is
any stock dividend or liquidating dividend or distribution of cash and/or
property, stock split or other change in the character or amount of any of the
outstanding securities of the Corporation, then, in such event, any and all new,
substituted or additional securities or other property to which Purchaser is
entitled by reason of his ownership of Stock will be immediately subject to the
Purchase Option and be included in the word "Stock" for all purposes of the
Purchase Option with the same force and effect as the shares of Stock then
subject to the Purchase Option. While the total Option Price shall remain the
same after each such event, the Option Price per share of Stock upon exercise of
the Purchase Option shall be appropriately adjusted.
2.
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5. All certificates representing any shares of Stock of the Corporation
subject to the provisions of this Agreement shall have endorsed thereon legends
in substantially the following form:
(i) "The shares represented by this certificate are subject to
an option set forth in an agreement between the corporation and the registered
holder, or his predecessor in interest, a copy of which is on file at the
principal office of this corporation. Any transfer or attempted transfer of any
shares subject to such option is void without the prior express written consent
of the issuer of these shares."
(ii) "These securities have not been registered under the
Securities Act of 1933. They may not be sold, offered for sale, pledged or
hypothecated in the absence of an effective registration statement as to the
securities under said Act or an opinion of counsel satisfactory to the
corporation that such registration is not required."
(iii) Any legend required to be placed thereon by the California
Commissioner of Corporations.
6. Purchaser acknowledges that he is aware that the Stock to be issued
to him by the Corporation pursuant to this Agreement has not been registered
under the Securities Act of 1933, as amended (the "Act"), on the basis that no
distribution or public offering of the Stock is to be effected, and in this
connection acknowledges that the Corporation is relying on the following
representations: Purchaser warrants and represents to the Corporation that he is
acquiring the Stock for investment and not with a view to or for sale in
connection with any distribution of the Stock or with any present intention of
distributing or selling the Stock and he does not presently have reason to
anticipate any change in circumstances or any particular occasion or event which
would cause him to sell the Stock. Purchaser recognizes that the Stock must be
held indefinitely unless it is subsequently registered under the Act or an
exemption from such registration is available and, further, recognizes that the
Corporation is under no obligation to register the Stock or to comply with any
exemption from such registration.
7. Purchaser is aware that the Stock may not be sold pursuant to Rule
144 adopted under the Act unless certain conditions are met and until Purchaser
has held the Stock for at least two (2) years. Among the conditions for use of
Rule 144 is the availability of specified current public information about the
Corporation. Purchaser recognizes that the Corporation presently has no plans to
make such information available to the public.
Whether or not the Purchase Option is exercised or has lapsed, Purchaser further
agrees not to make any disposition of any of the Stock in any event unless and
until:
(a) There is then in effect a registration statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) Purchaser shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii)
Purchaser shall have given the Corporation an opinion of counsel, which opinion
and counsel shall be satisfactory to the
3.
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Corporation, to the effect that such disposition will not require registration
of the Stock under the Act.
8. As security for his faithful performance of the terms of this
Agreement and to insure the availability for delivery of Purchaser's Stock upon
exercise of the Purchase Option herein provided for, Purchaser agrees, at the
closing hereunder (or as soon thereafter as practicable) to deliver (or have the
Corporation deliver on the Purchaser's behalf) to and deposit with the Secretary
of the Corporation, as escrow agent in this transaction (the "Escrow Agent"),
three (3) stock assignments duly endorsed (with date and number of shares left
blank) in the form attached hereto as Exhibit B, together with a certificate or
certificates evidencing all of the Stock subject to the Purchase Option; said
documents are to be held by the Escrow Agent and delivered by said Escrow Agent
pursuant to the Joint Escrow Instructions of the Corporation and Purchaser set
forth in Exhibit C attached hereto and incorporated herein by this reference,
which instructions shall also be delivered to the Escrow Agent at the closing
hereunder (or as soon thereafter as practicable).
9. Purchaser shall not sell or transfer any of the Stock subject to the
Purchase Option or any interest therein so long as such Stock is subject to the
Purchase Option.
10. The Corporation shall not be required (i) to transfer on its books
any shares of Stock of the Corporation which shall have been sold or transferred
in violation of any of the provisions set forth in this Agreement or (ii) to
treat as owner of such shares or to accord the right to vote as such owner or to
pay dividends to any transferee to whom such shares shall have been so
transferred.
11. Subject to the provisions of paragraphs 9 and 10 above, Purchaser
(but not any unapproved transferee) shall, during the term of this Agreement,
exercise all rights and privileges of a stockholder of the Corporation with
respect to the Stock.
12. Purchaser acknowledges receipt of a copy of Section 260.141.11 of
Title 10 of the California Administrative Code, attached hereto as Exhibit D.
13. The parties agree to execute such further instruments and to take
such further action as reasonably may be necessary to carry out the intent of
this Agreement.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
any United States Post Office Box, by registered or certified mail with postage
and fees prepaid, addressed to the other party hereto as his address hereinafter
shown below his signature or at such other address as such party may designate
by ten (10) days' advance written notice to the other party hereto.
15. This Agreement shall bind and inure to the benefit of the successors
and assigns of the Corporation and, subject to the restrictions on transfer
herein set forth, inure to the benefit of and be binding upon Purchaser, his
heirs, executors, administrators, successors, and assigns. Without limiting the
generality of the foregoing, the Purchase Option of the Corporation hereunder
shall be assignable by the Corporation at any time or from time to time, in
whole or in part. Should the right of repurchase be assigned by the Corporation,
the assignee shall pay to the
4.
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Corporation cash equal to the excess, if any, of the Stock's Fair Market Value
(as defined in the Plan) over the Option Price.
5.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the ___________ day of __________, 200__.
ALLAYER COMMUNICATIONS
By
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Xxxxx-Xxxxx Shih, President
Address: 000 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
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Purchaser
Address:
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ATTACHMENTS:
Exhibit A Vesting Schedule
Exhibit B Assignment Separate from Certificate
Exhibit C Joint Escrow Instructions
Exhibit D Cal. Admin. Code, Title 10, Section 260.141.11
83(b) Election
1.
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EXHIBIT A
VESTING SCHEDULE
1.
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EXHIBIT B
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED,____________ hereby sells, assigns and transfers unto
ALLAYER COMMUNICATIONS, a California corporation (the "Company"), pursuant to
the Purchase Option and Vested Purchase Option under that certain Early Exercise
Stock Purchase Agreement, dated ____________ , by and between the undersigned
and the Company (the "Agreement"), ________________(___) shares of Common Stock
of the Company standing in the undersigned's name on the books of the Company
represented by Certificate No(s). ______________ and does hereby irrevocably
constitute and appoint the Company's Secretary attorney to transfer said stock
on the books of the Company with full power of substitution in the premises.
This Assignment may be used only in accordance with and subject to the terms and
conditions of the Agreement, in connection with the repurchase of shares of
Common Stock issued to the undersigned pursuant to the Agreement, and only to
the extent that such shares remain subject to the Company's Purchase Option or
Vested Purchase Option under the Agreement.
Dated:
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EXHIBIT B
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED,__________ hereby sells, assigns and transfers unto
ALLAYER COMMUNICATIONS, a California corporation (the "Company"), pursuant to
the Purchase Option and Vested Purchase Option under that certain Early Exercise
Stock Purchase Agreement, dated _____________, by and between the undersigned
and the Company (the "Agreement"), __________________( ____ ) shares of Common
Stock of the Company standing in the undersigned's name on the books of the
Company represented by Certificate No(s). ______________ and does hereby
irrevocably constitute and appoint the Company's Secretary attorney to transfer
said stock on the books of the Company with full power of substitution in the
premises. This Assignment may be used only in accordance with and subject to the
terms and conditions of the Agreement, in connection with the repurchase of
shares of Common Stock issued to the undersigned pursuant to the Agreement, and
only to the extent that such shares remain subject to the Company's Purchase
Option or Vested Purchase Option under the Agreement.
Dated:
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EXHIBIT B
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED,____________ hereby sells, assigns and transfers unto
ALLAYER COMMUNICATIONS, a California corporation (the "Company"), pursuant to
the Purchase Option and Vested Purchase Option under that certain Early Exercise
Stock Purchase Agreement, dated ______________, by and between the undersigned
and the Company (the "Agreement"),_____ ( ) shares of Common Stock of the
Company standing in the undersigned's name on the books of the Company
represented by Certificate No(s). ______________ and does hereby irrevocably
constitute and appoint the Company's Secretary attorney to transfer said stock
on the books of the Company with full power of substitution in the premises.
This Assignment may be used only in accordance with and subject to the terms and
conditions of the Agreement, in connection with the repurchase of shares of
Common Stock issued to the undersigned pursuant to the Agreement, and only to
the extent that such shares remain subject to the Company's Purchase Option or
Vested Purchase Option under the Agreement.
Dated:
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EXHIBIT C
JOINT ESCROW INSTRUCTIONS
Xxxxx-Xxxxx Shih, Secretary
ALLAYER COMMUNICATIONS
c/o Cooley Godward LLP
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
As Escrow Agent for both ALLAYER COMMUNICATIONS, a California corporation
("Corporation") and ________________ ("Purchaser"), you are hereby authorized
and directed to hold the documents delivered to you pursuant to the terms of
that certain Early Exercise Stock Purchase Agreement ("Agreement") dated as of
__________________, to which a copy of these Joint Escrow Instructions is
attached as Exhibit C, in accordance with the following instructions:
1. In the event Corporation or an assignee shall elect to exercise the Purchase
Option or Vested Purchase Option set forth in the Agreement, the Corporation or
its assignee will give to Purchaser and you a written notice specifying the
number of shares of stock to be purchased, the purchase price, and the time for
a closing thereunder at the principal office of the Corporation. Purchaser and
the Corporation hereby irrevocably authorize and direct you to close the
transaction contemplated by such notice in accordance with the terms of said
notice.
2. At the closing, you are directed (a) to date the stock assignments necessary
for the transfer in question, (b) to fill in the number of shares being
transferred, and (c) to deliver the same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation against the
simultaneous delivery to you of the purchase price (which may include suitable
acknowledgment of cancellation of indebtedness) for the number of shares of
stock being purchased pursuant to the exercise of the Purchase Option or Vested
Purchase Option.
3. Purchaser irrevocably authorizes the Corporation to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as specified in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and complete any transaction herein contemplated,
including but not limited to any appropriate filing with state or government
officials or bank officials. Subject to the provisions of this paragraph 3,
Purchaser shall exercise all rights and privileges of a shareholder of the
Corporation while the stock is held by you.
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4. This escrow shall terminate upon the exercise in full or expiration of the
Purchase Option, whichever occurs first.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder; provided, however, that if at the time of
termination of this escrow you are advised by the Corporation that any property
subject to this escrow is the subject of a pledge or other security agreement,
you shall deliver all such property to the pledgeholder or other person
designated by the Corporation.
6. Your duties hereunder may be altered, amended, modified or revoked only by a
writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith and
in the exercise of your own good judgment, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence of
such good faith.
8. You are hereby expressly authorized to disregard any and all warnings given
by any of the parties hereto or by any other person or corporation, excepting
only orders or process of courts of law, and are hereby expressly authorized to
comply with and obey orders, judgments or decrees of any court. In case you obey
or comply with any such order, judgment or decree of any court, you shall not be
liable to any of the parties hereto or to any other person, firm or corporation
by reason of such compliance, notwithstanding any such order, judgment or decree
being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under any statute of
limitations with respect to these Joint Escrow Instructions or any documents
deposited with you.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you shall
cease to be Secretary of the Corporation or if you shall resign by written
notice to each party. In the event of any such termination, the Corporation
shall appoint any officer or assistant officer of the Corporation as successor
Escrow Agent, and Purchaser hereby confirms the appointment of such successor as
his attorney-in-fact and agent to the full extent of your appointment.
12. If you reasonably require other or further instruments in connection with
these Joint Escrow Instructions or obligations in respect hereto, the necessary
parties hereto shall join in furnishing such instruments.
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13. It is understood and agreed that should any dispute arise with respect to
the delivery and/or ownership or right of possession of the securities held by
you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
dispute shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
14. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery, including delivery by
express courier, or four (4) days after deposit in the United States Post
Office, by registered or certified mail with postage and fees prepaid, addressed
to each of the other parties entitled to such notice at the following addresses,
or at such other addresses as a party may designate by ten days' advance written
notice to each of the other parties hereto.
CORPORATION: ALLAYER COMMUNICATIONS
000 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
PURCHASER:
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ESCROW AGENT: XXXXX-XXXXX SHIH, SECRETARY
ALLAYER COMMUNICATIONS
c/o Cooley Godward LLP
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
15. By signing these Joint Escrow Instructions, you become a party hereto only
for the purpose of said Joint Escrow Instructions; you do not become a party to
the Agreement.
16. You shall be entitled to employ such legal counsel and other experts
(including, without limitation, the firm of Xxxxxx Godward LLP) as you may deem
necessary properly to advise you in connection with your obligations hereunder.
You may rely upon the advice of such counsel, and you may pay such counsel
reasonable compensation therefor. The Corporation shall be responsible for all
fees generated by such legal counsel in connection with your obligations
hereunder.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
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16. This Agreement shall be governed by and interpreted and determined in
accordance with the laws of the State of California, as such laws are applied by
California courts to contracts made and to be performed entirely in California
by residents of that state.
Very truly yours,
ALLAYER COMMUNICATIONS
By:
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PURCHASER
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ESCROW AGENT:
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Xxxxx-Xxxxx Shih, Secretary
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XXXXXXX X
XXXXX XX XXXXXXXXXX - XXXXXXXXXX ADMINISTRATIVE CODE
TITLE 10. Investment - Chapter 3. Commissioner of Corporations
260.141.11: RESTRICTION ON TRANSFER. (a) The issuer of any security upon which a
restriction on transfer has been imposed pursuant to Sections 260.102.6,
260.141.10 or 260.534 shall cause a copy of this section to be delivered to each
issuee or transferee of such security at the time the certificate evidencing the
security is delivered to the issuee or transferee.
(b) It is unlawful for the holder of any such security to consummate a sale or
transfer of such security, or any interest therein, without the prior written
consent of the Commissioner (until this condition is removed pursuant to Section
260.141.12 of these rules), except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in subdivision (i) of Section 25102 of
the Code or Section 260.105.14 of these rules;
(4) to the transferor's ancestors, descendants or spouse, or any
custodian or trustee for the account of the transferor or the
transferor's ancestors, descendants, or spouse; or to a
transferee by a trustee or custodian for the account of the
transferee or the transferee's ancestors, descendants or spouse;
(5) to holders of securities of the same class of the same issuer;
(6) by way of gift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code (either
acting as such or as a finder) to a resident of a foreign state,
territory or country who is neither domiciled in this state to
the knowledge of the broker-dealer, nor actually present in this
state if the sale of such securities is not in violation of any
securities law of the foreign state, territory or country
concerned;
(8) to a broker-dealer licensed under the Code in a principal
transaction, or as an underwriter or a member of an underwriting
syndicate or selling group;
(9) if the interest sold or transferred is a pledge or other lien
given by the purchaser to the seller upon a sale of the security
for which the Commissioner's written consent is obtained or
under this rule not required;
(10) by way of a sale qualified under Sections 25111, 25112, 25113,
or 25121 of the Code, of the securities to be transferred,
provided that no order under Section 25140 or Subdivision (a) of
Section 25143 is in effect with respect to such qualification;
(11) by a corporation to a wholly owned subsidiary of such
corporation, or by a wholly owned subsidiary of a corporation to
such corporation;
(12) by way of an exchange qualified under Section 25111, 25112 or
25113 of the Code, provided that no order under Section 25140 or
Subdivision (a) of Section 25143 is in effect with respect to
such qualification;
(13) between residents of foreign states, territories or countries
who are neither domiciled nor actually present in this state;
(14) to the State Controller pursuant to the Unclaimed Property Law
or to the administrator of the unclaimed property law of another
state; or
(15) by the State Controller pursuant to the Unclaimed Property Law
or by the administrator of the unclaimed property law of another
state if, in either such case, such person (i) discloses to
potential purchasers at the sale that transfer of the securities
is restricted under this rule, (ii) delivers to each purchaser a
copy of this rule, and (iii) advises the Commissioner of the
name of each purchaser;
(16) by a trustee to a successor trustee when such transfer does not
involve a change in the beneficial ownership of the securities;
(17) by way of an offer and sale of outstanding securities in an
issuer transaction that is subject to the qualification
requirement of Section 25110 of the Code but exempt from that
qualification requirement by subdivision (f) of Section 25102;
provided that any such transfer is on the condition that any
certificate evidencing the security issued to such transferee
shall contain the legend required by this section.
(c) The certificates representing all such securities subject to such a
restriction on transfer, whether upon initial issuance or upon any transfer
thereof, shall bear on their face a legend, prominently stamped or printed
thereon in capital letters of not less than 10-point size, reading as follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR
ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE
STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
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[DATE]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Director of Internal Revenue
Internal Revenue Service Center
Xxxxxx, XX 00000
RE: ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF TRANSFER
PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE
Gentlemen:
This statement constitutes an election pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended from time to time, with respect to the property
described below and supplies the following information in accordance with
Treasury Regulation Section 1.83-2:
1. The name, address and taxpayer identification number of the undersigned
are:
("Purchaser")
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SOCIAL SECURITY NO.:
---------------
2. PROPERTY DESCRIPTION: ____________________ shares of the Common Stock of
Allayer Communications (the "Company")
3. The date on which property was transferred is _______________, 20____.
4. The taxable year for which the election is made is the calendar year
20_____.
5. RESTRICTIONS:
A portion of the taxpayer's interest in the Common Stock of the Company
is subject to repurchase in the event the taxpayer's relationship with
the Company terminates for any reason.
6. The fair market value at the time of transfer of the property with
respect to which this election is being made, determined without regard
to any restriction other than a restriction which by its terms will
never lapse, is $___________.
7. The amount paid by the undersigned taxpayer for the property is
$__________.
8. A copy of this statement has been furnished to and the transferee of the
property if different from the Purchaser.
Dated: ______________, 20_____.
Very truly yours,
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Purchaser
