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EXHIBIT 99.10
SIBYTE, INC.
1998 STOCK INCENTIVE PLAN
STOCK PURCHASE AGREEMENT
Sibyte, Inc., a Delaware corporation (the "Company"), hereby sells
shares of its Common Stock to the purchaser named below. The terms and
conditions of the sale are set forth in this Stock Purchase Agreement and in the
Company's 1998 Stock Incentive Plan (the "Plan").
I. SALE INFORMATION
Date of this Agreement: __________, 1999
Name of Purchaser: _______________________
Purchaser's Social Security Number: ________-______-________
Number of Shares of Common Stock: ___________
Sale Price per Share: $__________
Vesting Schedule: Subject to attached Terms and Conditions,
the shares sold under this Agreement
shall vest as to 12/48ths of the shares
on the first anniversary of the Date of
this Agreement and 1/48th of the shares
each full month thereafter. Shares shall
vest as to an additional 12/48ths in the
event of Purchaser's Service termination
due to death or disability.
BY SIGNING BELOW, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED
IN THIS STOCK PURCHASE AGREEMENT, INCLUDING THE ATTACHED TERMS AND
CONDITIONS AND PLAN.
Purchaser:
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(Signature)
Company:
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(Signature)
Title:
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II. TERMS AND CONDITIONS
1. VESTING. The shares sold to you under this Agreement vest during your
Service on the dates specified in the first page of this Stock Purchase
Agreement. Vesting will cease if your Service terminates for any reason.
2. RIGHT OF REPURCHASE FOR UNVESTED SHARES. In the event that your
Service to the Company terminates for any reason, the Company will have the
right to purchase all of the shares subject to this Agreement that have not yet
vested. If the Company exercises its right to purchase such unvested shares, the
Company will consummate the purchase within sixty (60) days of its written
notice to you. The purchase price for any shares repurchased shall be the price
that you paid for those shares and shall be paid in cash. The Company's right of
repurchase shall terminate ninety (90) days after your Service termination.
3. SERVICE; LEAVES OF ABSENCE. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to, the Company (or any
subsidiary) as determined in the sole discretion of the Board. Your Service
terminates in any event when the approved leave ends, unless you immediately
return to active work. The Company determines which leaves count toward Service,
and when your Service terminates for all purposes under the Plan.
4. ESCROW. The certificates for the Common Stock subject to the
Company's right of repurchase shall be deposited in escrow with the Secretary of
the Company to be held in accordance with the provisions of this paragraph. Each
deposited certificate shall be accompanied by a duly executed Assignment
Separate from Certificate in the form attached. The deposited certificates,
shall remain in escrow until such time or times as the certificates are to be
released or otherwise surrendered for cancellation as discussed below. Upon
delivery of the certificates to the Company, you shall be issued an instrument
of deposit acknowledging the number of shares of Common Stock delivered in
escrow to the Secretary of the Company.
All regular cash dividends on the Common Stock (or other securities at
the time held in escrow) shall be paid directly to you and shall not be held in
escrow. However, in the event of any stock dividend, stock split,
recapitalization or other change affecting the Company's outstanding Common
Stock as a class effected without receipt of consideration, any new, substituted
or additional securities or other property which is by reason of such
transaction distributed shall be immediately delivered to the Secretary of the
Company to be held in escrow hereunder, but only to the extent the Common Stock
is at the time subject to the escrow requirements hereof.
The Common Stock held in escrow hereunder shall be subject to the
following terms and conditions relating to their release from escrow or their
surrender to the Company for repurchase and cancellation:
- As your interest in the Common Stock vests, the certificates for
such vested Common Stock shall be released from escrow and
delivered to you, at your request, in accordance with the
following schedule:
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- The initial release of any vested Common Stock (or other
vested assets and securities) from escrow shall be
effected within thirty (30) days following the
expiration of the initial twelve (12) month period
measured from the Vesting Start Date.
- Subsequent releases of any vested Common Stock from
escrow shall be effected at annual intervals thereafter,
with the first such annual release to occur twenty-four
(24) months after the Date of this Agreement.
- Upon termination of your Service, any escrowed Common
Stock in which you are at the time vested shall be
promptly released from escrow.
- Should the Company exercise its right of repurchase with respect
to any unvested Common Stock held at the time in escrow
hereunder, then the escrowed certificates for such unvested
Common Stock shall, concurrently with the payment of the
purchase price for such Common Stock, be surrendered to the
Company for cancellation, and you shall have no further rights
with respect to such Common Stock.
- Should the Company elect not to exercise its right of repurchase
with respect to any Common Stock held at the time in escrow
hereunder, then the escrowed certificates for such Common Stock
shall be surrendered to you.
5. SECTION 83(b) ELECTION. Under Section 83 of the Internal Revenue Code
of 1986, as amended (the "Code"), the different between the purchase price paid
for the Common Stock and their fair market value on the date any forfeiture
restrictions applicable to such Common Stock lapse will be reportable as
ordinary income at that time. For this purposes, "forfeiture restrictions"
include the Company's Repurchase Right as to unvested shares described above.
You may elect to be taxed at the time the shares are acquired to the extent the
fair market value of the shares differs from the purchase price rather than when
such shares cease to be subject to such forfeiture restrictions, by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days after the date of purchase. The form for making this
election is attached as Exhibit B hereto. Failure to make this filing within the
thirty (30) day period will result in the recognition of ordinary income by you
(in the event the fair market value of the shares increases after the date of
purchase) as the forfeiture restrictions lapse. YOU ACKNOWLEDGE THAT IT IS YOUR
SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER
SECTION 83(b), EVEN IF YOU REQUEST THE COMPANY OR ITS REPRESENTATIVES TO MAKE
THIS FILING ON YOUR BEHALF. YOU ARE RELYING SOLELY ON YOUR OWN ADVISORS WITH
RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE AN 83(b) ELECTION.
6. RESALE RESTRICTIONS/MARKET STAND-OFF. In connection with any
underwritten public offering by the Company of its equity securities pursuant to
an effective registration statement
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filed under the Securities Act of 1993, as amended, including the Company's
initial public offering, you shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the purchase of, or otherwise dispose
or transfer for value or agree to engage in any of the foregoing transactions
with respect to any Common Stock without the prior written consent of the
Company or its underwriters, for such period of time after the effective date of
such registration statement as may be requested by the Company or such
underwriters (not to exceed one hundred eighty (180) days). To enforce the
provisions of this paragraph, the Company may impose stop-transfer instructions
with respect to the Common Stock until the end of the applicable stand-off
period. You may not to sell any Common Stock at a time when applicable laws,
regulations or Company or underwriter trading policies prohibit a sale.
7. RIGHT OF FIRST REFUSAL. If you propose to sell, pledge or otherwise
transfer to a third party any Common Stock acquired under this Stock Purchase
Agreement, or any interest in such Common Stock, the Company shall have the
"Right of First Refusal" with respect to all (and not less than all) of such
Common Stock. If you desire to transfer Common Stock acquired under this Stock
Purchase Agreement, you must give a written notice ("Transfer Notice") to the
Company describing fully the proposed transfer, including the number of shares
proposed to be transferred, the proposed transfer price and the name and address
of the proposed transferee. The Transfer Notice shall be signed both by you and
by the proposed new transferee and must constitute a binding commitment of both
parties to the transfer of the Common Stock. The Company shall have the right to
purchase all, and not less than all, of the Common Stock on the terms of the
proposal described in the Transfer Notice (subject, however, to any change in
such terms permitted in the next paragraph) by delivery of a notice of exercise
of the Right of First Refusal within thirty (30) days after the date when the
Transfer Notice was received by the Company.
If the Company fails to exercise its Right of First Refusal before or
within thirty (30) days after the date when it received the Transfer Notice, you
may, not later than ninety (90) days following receipt of the Transfer Notice by
the Company, conclude a transfer of the Common Stock subject to the Transfer
Notice on the terms and conditions described in the Transfer Notice. Any
proposed transfer on terms and conditions different from those described in the
Transfer Notice, as well as any subsequent proposed transfer by you, shall again
be subject to the Right of First Refusal and shall require compliance with the
procedure described in the paragraph above. If the Company exercises its Right
of First Refusal, the parties shall consummate the sale of the Common Stock on
the terms set forth in the Transfer Notice within sixty (60) days after the date
when the Company received the Transfer Notice (or within such longer period as
may have been specified in the Transfer Notice); provided, however, that if the
Transfer Notice provided that payment for the Common Stock was to be made in a
form other than lawful money paid at the time of transfer, the Company shall
have the option of paying for the Common Stock with lawful money equal to the
present value of the consideration described in the Transfer Notice.
The Company's Right of First Refusal shall inure to the benefit of its
successors and assigns, shall be freely assignable in whole or in part and shall
be binding upon any transferee of the Common Stock. The Company's right of First
Refusal shall terminate if the Company's Common Stock is listed on an
established stock exchange or is quoted regularly on the Nasdaq Stock Market.
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8. NO RETENTION RIGHTS. Your option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. ADJUSTMENTS TO COMMON STOCK. In the event of a stock split, a stock
dividend or a similar change in the Company's Common Stock, the number of shares
covered by this Agreement and the repurchase price per share may be adjusted
pursuant to the Plan. The shares subject to this Agreement shall be subject to
the terms of the agreement of merger, liquidation or reorganization in the event
the Company is subject to such corporate activity.
10. LEGENDS. All certificates representing the Common Stock issued upon
exercise of your option shall, where applicable, have endorsed thereon the
following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY AND
THE INITIAL HOLDER HEREOF. SUCH AGREEMENT PROVIDES FOR CERTAIN TRANSFER
RESTRICTIONS, INCLUDING RIGHTS OF FIRST REFUSAL UPON AN ATTEMPTED
TRANSFER OF THE SECURITIES AND CERTAIN REPURCHASE RIGHTS IN FAVOR OF THE
COMPANY UPON TERMINATION OF SERVICE WITH THE COMPANY. THE SECRETARY OF
THE COMPANY WILL UPON WRITTEN REQUEST XXXXXXX A COPY OF SUCH AGREEMENT
TO THE HOLDER HEREOF WITHOUT CHARGE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF
REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL
AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION
UNDER FEDERAL AND STATE SECURITIES LAWS ARE NOT REQUIRED."
11. APPLICABLE LAW. This Agreement will be interpreted and enforced
under the laws of the State of California.
12. INCORPORATION OF PLAN BY REFERENCE. The text of the Plan is
incorporated in this Agreement by reference. Certain capitalized terms used in
this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire understanding between
you and the Company regarding this sale of Common Stock. Any prior agreements,
commitments or negotiations are superseded.
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ________________ hereby sells, assigns and transfers
unto Sibyte, Inc., a Delaware corporation (the "Company"), _________________
(________) shares of Common Stock of the Company represented by Certificate No.
_____ herewith and does hereby irrevocably constitute and appoint
_________________________ Attorney to transfer the said stock on the books of
the Company with full power of substitution in the premises.
Dated: ____________, 1998.
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Print Name
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Signature
Spousal Consent (if applicable)
________________ (Purchaser's spouse) indicates by the execution of this
Assignment his or her consent to be bound by the terms herein as to his or her
interests, whether as community property or otherwise, if any, in the shares of
Common Stock.
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Signature
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS
"REPURCHASE OPTION" SET FORTH IN THE AGREEMENT WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF PURCHASER.
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EXHIBIT B
Internal Revenue Service Center
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Re: Election Under Section 83(b) of the Internal Revenue Code of 1986
Ladies and Gentlemen:
I hereby elect under section 83(b) of the Internal Revenue Code of 1986
to include in gross income any excess of fair market value over purchase price
with respect to the transfer of the property described below:
1. Name: _____________________________
2. Address: _____________________________
_____________________________
3. Social Security Number: _______________________
4. Tax Year of Election: Calendar Year of 1999.
5. Description of Property: _________ shares of Common Stock of Sibyte,
Inc., a Delaware corporation (the "Company").
6. Date of Property Transfer: __________, 1999
7. Nature of Property Restrictions: Property is subject to the Company's
right to repurchase the stock at the undersigned's original purchase
price if the undersigned ceases to be associated with the Company, which
right will generally lapse over a designated four (4) year period.
8. Fair Market Value at the Time of Transfer: $_____ per share for an
aggregate of $_________. The Fair Market Value at the time of transfer
was determined without regard to any lapse restrictions as defined in
section 1.83-3(i) of the Income Tax Regulations.
9. Amount Paid for Property: $________ per share for an aggregate of
$________.
10. A copy of this election has been furnished to the Company, the person
for whom the services are performed.
Sincerely,
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Signature
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Date
