Exhibit 10.6
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made by and between iPASS INC., a California
corporation (the "Corporation"), and ▇▇▇▇▇▇ ▇▇▇ ("Purchaser").
W I T N E S S E T H:
WHEREAS, Corporation desires to sell to Purchaser and Purchaser desires
to purchase shares of common stock of the Corporation on the terms and
conditions set forth herein.
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 110,334 shares
of the common stock (the "Stock") of the Corporation, for an exercise price of
$1.50 per share (total exercise price: One Hundred Sixty Five Thousand Five
Hundred One Dollars ($165,501)), payable as follows:
Promissory Note in the form
of Exhibit C (the "Note") $165,501
Total Purchase Price $165,501
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 A duly endorsed (with date and number of shares left blank),
joint escrow instructions (the "Joint Escrow Instructions") in the form of
Exhibit B, duly executed by Purchaser, and the total exercise price (including
an executed Note in the form of Exhibit C if a portion of the total exercise
price is to be paid by promissory note and an executed pledge agreement in the
form of Exhibit D (the "Pledge Agreement") under which all shares of the Stock
acquired by Note shall be pledged as collateral security for the payment of the
indebtedness represented by the Note; and including endorsed certificates
representing the appropriate number of shares of the Corporation's common stock
if a portion of the total Exercise price is to be paid by common stock).
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 or the Pledge Agreement. The certificates for all of the Stock
that is subject to the Pledge Agreement but not the Purchase Option shall be
retained by the Corporation as security pursuant to the Pledge Agreement.
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"):
1.
(A) Upon Purchaser's termination of Continuous Service for any reason
(including his or her death), or no reason, with or without cause, the Purchase
Option may be exercised. The Corporation shall have the right at any time within
ninety (90) days after such cessation of employment to purchase from Purchaser
or his or her 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 exceeding the number of unvested shares of the Stock calculated in
accordance with the following vesting schedule:
(I) 1/4th of the shares shall vest after one year of
Continuous Service following October 29, 1999, and
(II) 1/48th of the shares shall vest monthly thereafter over
the next three years.
(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, liquidation or sale of all or substantially all of the assets of
the Corporation; (b) a merger or consolidation involving the Corporation in
which the Corporation is not the surviving corporation; or (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, 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 and given in payment for the
Stock 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.
(F) In the event that the Stock's Fair Market Value is equal to or
exceeds the Option Price on the date that the Purchaser ceases to be employed,
the Company shall exercise its purchase option to the extent permitted by law.
2.
3. Notwithstanding any other provisions of this Agreement to the
contrary, if (i) a Change in Control (as such term is defined below) occurs and
(ii) within twelve (12) months after the date of such Change in Control
Purchaser's Continuous Service terminates due to an involuntary termination (not
including death or Disability) without Cause or due to a voluntary termination
for Good Reason (as such term is defined below), then the Purchase Option held
by the Company with respect to the number of shares of Stock which would vest
during the twenty-four (24) month period following the Change of Control, shall
lapse, as appropriate; provided, however, that if such lapse of the Purchase
Option held by the Company with respect to Purchaser's Stock purchased under
this Agreement) would cause a contemplated Change in Control transaction that
would otherwise be eligible to be accounted for as a "pooling-of-interests"
transaction to become ineligible for such accounting treatment under generally
accepted accounting principles as determined by the Accountants prior to the
Change of Control, such lapse of the Purchase Option shall not occur.
For purposes of this Section 3 only, "Change in Control" means: (i) a
sale of all or substantially all of the assets of the Company; (ii) a merger or
consolidation in which the Company is not the surviving corporation and in which
beneficial ownership of securities of the Company representing at least fifty
percent (50%) of the combined voting power entitled to vote in the election of
Directors of the Company has changed; (iii) a reverse merger in which the
Company is the surviving corporation but the shares of Common Stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise, and in
which beneficial ownership of securities of the Company representing at least
fifty percent (50%) of the combined voting power entitled to vote in the
election of Directors of the Company has changed; (iv) an acquisition by any
person, entity or group within the meaning of Section 13(d) or 14(d) of the
Exchange Act, or any comparable successor provisions (excluding any employee
benefit plan, or related trust, sponsored or maintained by the Company or
subsidiary of the Company or other entity controlled by the Company) of the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act, or comparable successor rule) of securities of the Company
representing at least fifty percent (50%) of the combined voting power entitled
to vote in the election of Directors of the Company; or (v) in the event that
the individuals who, as of the Listing Date, are members of the Company's Board
of Directors (the "Incumbent Board"), cease for any reason to constitute at
least fifty percent (50%) of the Board. (If the election, or nomination for
election by the Company's stockholders, of any new Director is approved by a
vote of at least fifty percent (50%) of the Incumbent Board, such new Director
shall be considered to be a member of the Incumbent Board in the future.)
For purposes of this Section 3 only, "Good Reason" means: (i) reduction
of Purchaser's rate of compensation as in effect immediately prior to the
occurrence of a change in control, (ii) failure to provide a package of welfare
benefit plans which, taken as a whole, provides substantially similar benefits
to those in which Purchaser is entitled to participate immediately prior to the
occurrence of the Change in Control or any action which would adversely affect
Purchaser's participation or reduce Purchaser's benefits under any of such
plans, (iii) change in Purchaser's responsibilities, authority, title or office
resulting in diminution of position, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in based faith which is remedied
by the Company promptly after notice thereof is given by Purchaser, (iv) request
that Purchaser relocate to a worksite that is more than 35 miles from
Purchaser's prior
3.
worksite, unless Purchaser accepts such relocation opportunity, (v) material
reduction in Purchaser's duties, (vi) failure or refusal of a successor to the
Company to assume the Company's obligations under Purchaser's employment
agreement with the Company or (vii) material breach by the Company or any
successor to the Company or any of the material provisions of Purchaser's
employment agreement with the Company.
4. 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.
5. 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.
6. 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.
7. 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
4.
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.
8. 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 one year. 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 Corporation, to
the effect that such disposition will not require registration of the Stock
under the Act.
9. 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 A, 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 B 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).
If a portion of the total purchase price is paid by a promissory note,
the Stock is also subject to the Pledge Agreement, and possession of the
certificates and stock assignments by the Escrow Agent shall also constitute
possession by the Company of such instruments pursuant to the Pledge Agreement.
5.
10. 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.
11. 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.
12. Subject to the provisions of paragraphs 10 and 11 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.
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 is intended to be construed consistent with the
terms of the incentive stock option grant to Purchaser dated October 29, 1999
("ISO Grant"), and the Early Exercise Stock Purchase Agreement (pursuant to the
ISO Grant) of the Purchaser dated November 8, 1999. 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 Corporation cash equal to the excess, if any, of the Stock's Fair Market
Value over the Option Price.
16. DEFINITIONS.
For purposes of this Agreement, the following capitalized
terms shall have the meanings set forth below which are intended and should be
construed to be the same definitions as provided in the iPass Inc. 1999 Stock
Option Plan.
(A) "AFFILIATE" means any parent corporation or subsidiary
corporation of the Company, whether now or hereafter existing, as those terms
are defined in Sections 424(e) and (f), respectively, of the Code.
(B) "BOARD" means the Board of Directors of the Company.
(C) "CAUSE" means the occurrence of any of the following (and
only the following): (i) conviction of the terminated Purchaser of any felony
involving fraud or act of
6.
dishonesty against the Company or its Affiliates; (ii) conduct by the terminated
Purchaser which, based upon good faith and reasonable factual investigation and
determination of the Company (or, if the terminated Purchaser is an Officer, of
the Board), demonstrates gross unfitness to serve; or (iii) intentional,
material violation by the terminated Purchaser of any statutory or fiduciary
duty of the terminated Purchaser to the Company or its Affiliates. In addition,
if the terminated Purchaser is not an Officer, Cause also shall include poor
performance of the terminated Purchaser's services for the Company or its
Affiliates as determined by the Company following (A) written notice to the
Purchaser describing the nature of such deficiency and (b) the Purchaser's
failure to cure such deficiency within thirty (30) days following receipt of
such written notice.
(D "CODE" means the Internal Revenue Code of 1986, as
amended.
(E) "COMMON STOCK" means the common stock of the Company.
(F) "COMPANY" means iPass Inc., a California corporation.
(G) "CONTINUOUS SERVICE" means that individual's service with
the Company or an Affiliate, whether as an Employee, Director or Consultant, is
not interrupted or terminated. The Purchaser's Continuous Service shall not be
deemed to have terminated merely because of a change in the capacity in which
the Purchaser renders service to the Company or an Affiliate as an Employee,
Consultant or Director or a change in the entity for which the Purchaser renders
such service, provided that there is no interruption or termination of the
Purchaser's Continuous Service. For example, a change in status from an Employee
of the Company to a Consultant of an Affiliate or a Director will not constitute
an interruption of Continuous Service. The Board or the chief executive officer
of the Company, in that party's sole discretion, may determine whether
Continuous Service shall be considered interrupted in the case of any leave of
absence approved by that party, including sick leave, military leave or any
other personal leave.
(H) "DIRECTOR" means a member of the Board of Directors of the
Company.
(I) "DISABILITY" means the permanent and total disability of a
person within the meaning of Section 22(e)(3) of the Code.
(J) "EMPLOYEE" means any person employed by the Company or an
Affiliate. Mere service as a Director or payment of a director's fee by the
Company or an Affiliate shall not be sufficient to constitute "employment" by
the Company or an Affiliate.
(K) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
(L) "FAIR MARKET VALUE" means, as of any date, the value of
the Common Stock determined as follows and in each case in a manner consistent
with Section 260.140.50 of Title 10 of the California Code of Regulations:
(I) If the Common Stock is listed on any established
stock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap
Market, the Fair Market Value of a share of Common Stock shall be the closing
sales price for such stock (or the closing bid, if
7.
no sales were reported) as quoted on such exchange or market (or the exchange or
market with the greatest volume of trading in the Common Stock) on the last
market trading day prior to the day of determination, as reported in The Wall
Street Journal or such other source as the Board deems reliable.
(II) In the absence of such markets for the Common
Stock, the Fair Market Value shall be determined in good faith by the Board.
(M) "LISTING DATE" means the first date upon which any
security of the Company is listed (or approved for listing) upon notice of
issuance on any securities exchange or designated (or approved for designation)
upon notice of issuance as a national market security on an interdealer
quotation system.
(N) "OFFICER" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(O) "PLAN" means the iPass Inc. 1999 Stock Option Plan as in
effect on the date of this Agreement.
(P) "RULE 16B-3" means Rule 16b-3 promulgated under the
Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
(Q) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 8th day of November, 1999.
iPASS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Chairman and CEO
-----------------------------
PURCHASER
/s/ ▇▇▇▇▇▇ ▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8.
ATTACHMENTS:
Exhibit A Assignment Separate from Certificate
Exhibit B Joint Escrow Instructions
Exhibit C Promissory Note
Exhibit D Pledge Agreement
9.
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock
Purchase Agreement dated as of November 8, 1999, ▇▇▇▇▇▇ ▇▇▇ hereby sells,
assigns and transfers unto iPASS INC. ______________________________
(__________) shares of common stock of iPass Inc., a California corporation,
standing in the undersigned's name on the books of said corporation represented
by Certificate No. _____ herewith, and does hereby irrevocably constitute and
appoint ▇▇▇▇▇▇ Godward LLP attorney to transfer the said stock on the books of
the said corporation 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
under the Agreement.
Dated: ________________
Signature
/s/ ▇▇▇▇▇▇ ▇▇▇
__________________________________
[INSTRUCTION: Please do not fill in any blanks other than the
"Signature" line and the "Print Name" line.]
2.
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
Secretary
iPass Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sir/Madam:
As Escrow Agent for both iPASS INC., a California corporation
("Corporation"), and the undersigned purchaser of stock of the Corporation
("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 November 8, 1999 to which a copy of
these Joint Escrow Instructions is attached as Exhibit B, in accordance with the
following instructions:
1. In the event the Corporation or an assignee shall elect to exercise
the 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
hereunder 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 any stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver 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) of the number of shares of stock
being purchased pursuant to the exercise of the 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 and other property all documents of assignment and/or
transfer and all stock certificates necessary or appropriate to make all
securities negotiable and complete any transaction herein contemplated.
4. This escrow shall terminate upon expiration or exercise in full 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 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 the 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.
2.
6. Except as otherwise provided in these Joint Escrow Instructions,
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 or
their assignees. 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 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,
authority 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. You shall be entitled to employ such legal counsel (including
without limitation the firm of ▇▇▇▇▇▇ Godward LLP) and other experts as you may
deem necessary properly to advise you in connection with your obligations
hereunder, may rely upon the advice of such counsel, and may pay such counsel
reasonable compensation therefor.
12. 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 may appoint any officer or assistant officer of the Corporation as
successor Escrow Agent and Purchaser hereby confirms the appointment of such
successor or successors as his attorney-in-fact and agent to the full extent of
your appointment.
13. 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.
14. 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, you may (but are not obligated 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
3.
appeal has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.
15. 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 Box, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties hereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' written notice to each of the other parties hereto:
CORPORATION: iPASS INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PURCHASER: ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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SECRETARY: SECRETARY
iPass Inc.
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16. 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.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. It is
understood and agreed that references to "you" or "your" herein refer to the
original Escrow Agent and to any and all successor Escrow Agents. It is
understood and agreed that the Corporation may at any time or from time to time
assign its rights under the Agreement and these Joint Escrow Instructions in
whole or in part.
4.
Very truly yours,
iPASS INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman and CEO
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PURCHASER
/s/ ▇▇▇▇▇▇ ▇▇▇
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ESCROW AGENT:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Secretary
5.
EXHIBIT C
AMENDED AND RESTATED
PROMISSORY NOTE
Redwood City, California
Date: December 1, 2001
WHEREAS, on November, 1999 ("Original Note Date"), the undersigned
executed a promissory note ("Original Note") under which the undersigned
promised to pay to the order of iPASS INC., a Delaware corporation (the
"Company"), the sum of One Hundred Sixty Five Thousand Five Hundered One dollars
($165,501) together with interest accrued on the unpaid Principal of the
Original Note from the Original Note Date to the date of payment of the
Principal at the rate of 6.25% compounded annually, or the maximum rate
permissible by law;
WHEREAS, under the terms of the Original Note, interest on the Original
Note would accrue and be paid on an annual basis until the Principal under the
Original Note was paid in full; and
WHEREAS, the undersigned and the Company desire to amend and restate in
its entirety the Original Note to (i) increase the interest rate under the
Original Note beginning on the date hereof, and (ii) provide that interest
accrued on the unpaid Principal under the Original Note shall accrue interest at
the new higher interest rate under this Amended and Restated Promissory Note
(the "Amended Note") and become due and payable at the time that the Principal
is due and payable under this Amended Note.
NOW, THEREFORE, FOR VALUE RECEIVED, the undersigned hereby amends the
Original Note (and the Company hereby agrees to such amendment to the Original
Note) and unconditionally promises to pay to the order of the Company or the
holder hereof, at the Company's headquarters in Redwood City, California, or at
such other place as the Company or the holder hereof may designate in writing,
in lawful money of the United States of America and in immediately available
funds, (i) the principal sum of One Hundred Sixty Five Thousand Five Hundred One
dollars ($165,501) ("Principal"), (ii) accrued but unpaid interest under the
Original Note from the Original Note Date to the date hereof in the amount of
Twenty Two Thousand Three Hundred Eighty Four dollars Twenty Five cents
($22,384.25) ("Accrued Interest"), and (iii) interest on the unpaid Principal
and the Accrued Interest at the rate of 7% compounded annually from the date
hereof ("Current Interest"), as follows:
PRINCIPAL REPAYMENT. The outstanding Principal amount
hereunder shall be due and payable in full on the earlier of the
following dates: (i) the date that is one year from the effective date
of the Company's initial public offering or (ii) December 1, 2005; and
INTEREST PAYMENTS. Interest shall accrue on the basis of a
365-day year for the actual number of days elapsed on all unpaid
Principal, Accrued Interest and Current Interest as set forth above and
shall be due and payable in full on the due date of the outstanding
Principal amount hereunder;
provided, however, that in the event the undersigned's continuous relationship
with the Company as an employee, director or consultant is terminated by the
undersigned or the Company for any
2.
reason prior to payment in full of this Amended Note, this Amended Note shall be
accelerated and all remaining unpaid Principal, Accrued Interest and Current
Interest shall become due and payable immediately after such termination.
This document amends and restates in its entirety the terms of the
Original Note but in no event shall be deemed a novation of the Original Note.
This Amended Note may be prepaid in whole or in part from time to time and shall
be a full recourse obligation against the undersigned. All money paid toward the
satisfaction of this Amended Note shall be applied first to the payment of
interest as required hereunder and then to the repayment of the Principal
balance.
The full amount of this Amended Note is secured by a pledge of the
shares of Common Stock of the Company that secured the payment of the Original
Note, and is subject to all of the terms and provisions of the Early Exercise
Stock Purchase Agreement, the Pledge Agreement and the Joint Escrow
Instructions, entered into as of the Original Note Date between the undersigned
and the Company. The parties hereby agree that the term "indebtedness" as used
in the Pledge Agreement shall also include the Amended Note and that the Early
Exercise Stock Purchase Agreement, the Pledge Agreement and the Joint Escrow
Instructions shall continue to apply to this Amended Note.
The undersigned hereby represents and agrees that the amounts due under
the Original Note and this Amended Note were not and are not consumer debt, and
were not and are not incurred primarily for personal, family or household
purposes, but were and are for business or investment purposes only.
The undersigned hereby waives presentment, protest and notice of
protest, demand for payment, notice of dishonor and all other notices or demands
in connection with the delivery, acceptance, performance, default or endorsement
of this Amended Note.
The holder hereof shall be entitled to recover, and the undersigned
agrees to pay when incurred, all costs and expenses of collection of this
Amended Note, including without limitation, reasonable attorneys' fees.
This Amended Note shall be governed by, and construed, enforced and
interpreted in accordance with, the laws of the State of California, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
Signed
/s/ ▇▇▇▇▇▇ ▇▇▇
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Consent to Amendment Granted:
iPass Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its VP & CFO
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3.
EXHIBIT D
PLEDGE AGREEMENT
1. As collateral security for the payment of that certain $165,501
promissory note issued this date to iPass Inc. ("Pledgee") by the undersigned
(hereinafter called "indebtedness"), the undersigned hereby assigns, transfers
to and pledges with the Pledgee the 110,334 shares of iPass Inc. common stock
which were this day delivered to be deposited with Pledgee, together with any
stock rights, rights to subscribe, dividends paid in cash or other property in
connection with the complete or partial liquidation of Pledgee, stock dividends,
dividends paid in stock, new securities or other property except cash dividends
other than liquidating dividends to which the undersigned is or may hereafter
become entitled to receive on account of such property, and in the event that
the undersigned receives any such, the undersigned will immediately deliver it
to Pledgee to be held by Pledgee hereunder in the same manner as the property
originally pledged hereunder. All property assigned, transferred to and pledged
with Pledgee under this paragraph is hereinafter called "collateral."
2. At any time, without notice, and at the expense of the undersigned,
Pledgee in its name or in the name of its nominee or of the undersigned may, but
shall not be obligated to: (1) collect by legal proceedings or otherwise all
dividends (except cash dividends other than liquidating dividends), interest,
principal payments and other sums now or hereafter payable upon or on account of
said collateral; (2) enter into any extension, reorganization, deposit, merger,
or consolidation agreement, or any agreement in any wise relating to or
affecting the collateral, and in connection therewith may deposit or surrender
control of such collateral thereunder, accept other property in exchange for
such collateral and do and perform such acts and things as it may deem proper,
and any money or property received in exchange for such collateral shall be
applied to the indebtedness or thereafter held by it pursuant to the provisions
hereof; (3) insure, process and preserve the collateral; (4) cause the
collateral to be transferred to its name or to the name of its nominee; (5)
exercise as to such collateral all the rights, powers, and remedies of an owner,
except that so long as the indebtedness is not in default the undersigned shall
retain all voting rights as to the collateral.
3. The undersigned agrees to pay prior to delinquency all taxes,
charges, liens and assessments against the collateral, and upon the failure of
the undersigned to do so Pledgee at its option may pay any of them and shall be
the sole judge of the legality or validity thereof and the amount necessary to
discharge the same.
4. All advances, charges, costs and expenses, including reasonable
attorneys' fees, incurred or paid by Pledgee in exercising any right, power or
remedy conferred by this agreement, or in the enforcement thereof, shall become
a part of the indebtedness secured hereunder and shall be paid to Pledgee by the
undersigned immediately and without demand.
5. Provided that Pledgee has given the undersigned fifteen (15)
business days written notice of the occurrence of any of the following events
and the undersigned has not corrected the occurrence of the described event
within the fifteen (15) business days notice period, then, and only then,
Pledgee may declare all or any part of the indebtedness of the undersigned to be
in default and thereafter such amounts shall immediately become due and payable
irrespective of any agreed maturity: (1) undersigned's failure to keep or
perform any of the terms or provisions of this agreement; (2) undersigned's
default in the payment of principal or interest when due; (3)
the levy of any attachment, execution or other process against the collateral;
or (4) the insolvency, commission of an act of bankruptcy, general assignment
for the benefit of creditors, filing of any petition in bankruptcy or for relief
under the provisions of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Bankruptcy, of, by, or
against the undersigned.
6. In the event of the nonpayment of any indebtedness when due, whether
by acceleration or otherwise, or upon the happening of any of the events
specified in the preceding paragraph, Pledgee may then, after having given the
undersigned fifteen (15) business days written notice of the nonpayment of the
indebtedness or the happening of any of the events specified in the preceding
paragraph and the undersigned failing to pay the indebtedness due or correct the
event or events specified in the written notice within the fifteen (15) business
days notice period, or at any time thereafter, apply, set off, collect or sell
in one or more sales, or take such steps as may be necessary to liquidate and
reduce to cash in the hands of Pledgee in whole or in part, with or without any
further demands or demand of performance or notice or advertisement, the whole
or any part of the collateral in such order as Pledgee may elect, and any such
sale may be made either at public or private sale at its place of business or
elsewhere, or at any broker's board or securities exchange, either for cash or
upon credit or for future delivery; provided, however, that if such disposition
is at private sale, then the purchase price of the collateral shall be equal to
the public market price then in effect, or, if at the time of sale no public
market for the collateral exists, then, in recognition of the fact that the sale
of the collateral would have to be registered under the Securities Act of 1933
and that the expenses of such registration are commercially unreasonable for the
type and amount of collateral pledged hereunder, Pledgee and the undersigned
hereby agree that such private sale shall be at a purchase price mutually agreed
to by Pledgee and the undersigned or, if the parties cannot agree upon a
purchase price, then at a purchase price established by a majority of three
independent appraisers knowledgeable of the value of such collateral, one named
by the undersigned within 10 days after written request by the Pledgee to do so,
one named by Pledgee within such 10 day period, and the third named by the two
appraisers so selected, with the appraisal to be rendered by such body within 30
days of the appointment of the third appraiser. The cost of such appraisal,
including all appraiser's fees, shall be charged against the proceeds of sale as
an expense of such sale. Pledgee may be the purchaser of any or all collateral
so sold and hold the same thereafter in its own right free from any claim of the
undersigned or right of redemption. Demands of performance, notices of sale,
advertisements and presence of property at sale are hereby waived, and Pledgee
is hereby authorized to sell hereunder any evidence of debt pledged to it. Any
sale hereunder may be conducted by any officer or agent of Pledgee.
7. The proceeds of the sale of any of the collateral and all sums
received or collected by Pledgee from or on account of such collateral shall be
applied by Pledgee to the payment of expenses incurred or paid by Pledgee in
connection with any sale, transfer or delivery of the collateral, to the payment
of any other costs, charges, attorneys' fees or expenses mentioned herein, and
to the payment of the indebtedness or any part hereof, all in such order and
manner as Pledgee in its discretion may determine. Pledgee shall pay any balance
to the undersigned.
8. Pledgee may at any time deliver the collateral or any part thereof
to the undersigned and the receipt of the undersigned shall be a complete and
full acquaintance for the collateral so delivered, and Pledgee shall thereafter
be discharged from any liability or responsibility therefor.
9. Upon the transfer of all or any part of the indebtedness Pledgee may
transfer all or any part of the collateral and shall be fully discharged
thereafter from all liability and responsibility with respect to such collateral
so transferred, and the transferee shall be vested with all the rights and
powers of Pledgee hereunder with respect to such collateral so transferred; but
with respect to any collateral not so transferred Pledgee shall retain all
rights and powers hereby given.
10. Until all indebtedness shall have been paid in full the power of
sale and all other rights, powers and remedies granted to Pledgee hereunder
shall continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part thereof
may have become barred by any statute of limitations, or that the personal
liability of the undersigned may have ceased.
11. Pledgee agrees that so long as the indebtedness is not in default,
shares of iPass Inc. common stock held hereunder as collateral for the
indebtedness shall be released from pledge as the indebtedness is paid. Such
releases shall be at the rate of one share for each $1.50 of principal amount of
indebtedness paid. Release from pledge, however, shall not result in release
from the provisions of those certain Joint Escrow Instructions, if any, of even
date herewith among the parties to this Pledge Agreement and the Escrow Agent
named therein or from the Purchase Option of iPass Inc., set forth in the Early
Exercise Stock Purchase Agreement dated November 8, 1999, if any, between the
parties to this Pledge Agreement.
12. The rights, powers and remedies given to Pledgee by this agreement
shall be in addition to all rights, powers and remedies given to Pledgee by
virtue of any statute or rule of law. Pledgee may exercise its Pledgee's lien or
right of setoff with respect to the indebtedness in the same manner as if the
indebtedness were unsecured. Any forbearance or failure or delay by Pledgee in
exercising any right, power or remedy hereunder shall not be deemed to be a
waiver of such right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further exercise
thereof; and every right, power and remedy of Pledgee shall continue in full
force and effect until such right, power or remedy is specifically waived by an
instrument in writing executed by Pledgee.
Dated: November 8, 1999
/s/ ▇▇▇▇▇▇ ▇▇▇
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