EXHIBIT 10.5
BROADBAND SPORTS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is entered
into as of November 24, 1999, by and between Broadband Sports, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxxx ("Recipient").
W I T N E S S E T H
WHEREAS, the Company regards Recipient as a valuable contributor to
the Company and has determined that it would be in the interest of the Company
and its stockholders to sell the Stock (as defined below) provided for in this
Agreement to Recipient as an incentive for continued service with the Company
and increased achievements in the future by Recipient;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties to this Agreement hereby agree as follows:
A G R E E M E N T
1. Restricted Stock Purchase.
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(a) Contemporaneously with the execution of this Agreement, the
Company will issue and sell to Recipient 30,389,809 shares of Common Stock, par
value $0.001 per share, of the Company (the "Stock") for a consideration of
$0.60 per share (the "Purchase Price"). Payment for the Stock in the amount of
the Purchase Price multiplied by the number of shares issued hereunder shall be
made to the Company upon execution of this Agreement. Payment for 5,054,965
shares shall be made in cash, by check or wire transfer payable to the Company,
and payment for the remaining 25,334,844 shares shall be made by execution of a
promissory note substantially in the form attached hereto as Exhibit A (the
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"Note"), or any combination of the foregoing. Stock certificates evidencing the
Restricted Stock (as defined below) will be retained by the Company, accompanied
by blank stock powers executed by Recipient, for the period during which the
Stock constitutes Restricted Stock pursuant to the terms of Sections 2 and 3
hereof.
(b) All shares of Stock issued hereunder shall be deemed issued
to Recipient as fully paid and nonassessable shares, and Recipient shall have
all rights of a stockholder with respect thereto, including the right to vote,
receive dividends (including stock dividends), participate in stock splits or
other recapitalizations, and exchange such shares in a merger, consolidation or
other reorganization. The term "Stock," in addition to the shares purchased
pursuant to this Agreement, also refers to all securities received in
replacement of the Stock, as a stock dividend or as a result of any stock split,
recapitalization, merger,
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reorganization, exchange or the like, and all new, substituted or additional
securities or other properties to which Recipient is entitled by reason of
Recipient's ownership of the Stock.
2. Restrictions.
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(a) No Stock issued to the Recipient hereunder shall be sold,
transferred by gift, pledged, hypothecated, or otherwise transferred or disposed
of by the Recipient prior to the date when the Recipient shall become vested in
such Stock pursuant to Section 3 hereof, and such Stock shall constitute
"Restricted Stock" until such date. Any attempt to transfer Stock in violation
of this Section 2 shall be null and void and shall be disregarded by the
Company.
(b) In addition, Restricted Stock shall be subject to a
repurchase option in favor of the Company (the "Repurchase Option"). The
Repurchase Option shall be subject to the following terms and conditions:
(i) In the event of the voluntary or involuntary
termination of Recipient as an employee of the Company for any reason, with or
without cause (including death or disability), the Company shall, upon the date
of such termination, have an irrevocable, exclusive option for a period of
ninety (90) days from such date to repurchase any or all Restricted Stock from
Recipient or any person receiving the Restricted Stock by operation of law of
other involuntary transfer, at the original Purchase Price for the Restricted
Stock, subject to Section 3 hereof; provided, in the event that Restricted Stock
shall continue to vest after the date of termination of Recipient as an employee
of the Company in accordance with Section 3, such ninety (90) day period during
which the Repurchase Option may be exercised by the Company shall not expire and
shall be extended until the expiration of the ninety (90) day period commencing
on the date that such additional Restricted Stock shall no longer continue to
vest in accordance with Section 3. The Repurchase Option may be assigned by the
Company to any third person or entity.
(ii) The Repurchase Option shall be exercised by written
notice by the Company or its assignee to Recipient or his or her executor and,
at the Company's or its assignee's option, by delivery to the Recipient or his
or her executor, with such notice, of (A) a check in the amount of the Purchase
Price for the Restricted Stock being repurchased, (B) in the event that
Recipient is indebted to the Company or its assignee, by cancellation by the
Company or its assignee of an amount of such indebtedness equal to the Purchase
Price for the Restricted Stock being repurchased, or (C) by a combination of (A)
and (B) so that the combined payment and cancellation of indebtedness equals
such Purchase Price. Upon delivery by the Company or its assignee of such notice
and payment of the Purchase Price, the Company or its assignee shall become the
legal and beneficial owner of the Restricted Stock being repurchased and all
rights and interest therein or related thereto, and the Company shall have the
right to transfer to its or its assignee's own name the number of shares of
Restricted Stock being repurchased by the Company or its assignee, without
further action by Recipient.
(c) For purposes of facilitating the enforcement of the
provisions of this Section 2, Recipient agrees, immediately upon receipt of the
certificate(s) for the Restricted Stock, to deliver such certificate(s),
together with an Assignment Separate from Certificate, in substantially the form
of that attached hereto as Exhibit B, executed in blank by Recipient and
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Recipient's spouse (if required for transfer) with respect to each such stock
certificate, to the Secretary or Assistant Secretary of the Company, or their
designee, to hold in escrow for so long as such Stock remains Restricted Stock,
with the authority to take all such actions and to effectuate all such transfers
and/or releases as may be necessary or appropriate to accomplish the objectives
of this Agreement in accordance with the terms hereof. Recipient hereby
acknowledges that the appointment of the Secretary or Assistant Secretary of the
Company (or their designee) as the escrow holder hereunder with the stated
authorities is a material inducement to the Company to make this Agreement and
that such appointment is coupled with an interest and is accordingly
irrevocable. Recipient agrees that such escrow holder shall not be liable to any
party hereto (or to any other party) for any actions or omissions unless such
escrow holder is grossly negligent relative thereto. The escrow holder may rely
upon any letter, notice or other document executed by any signature purported to
be genuine and may resign at any time.
3. Vesting. For purposes of this Agreement, the term "vest" shall
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mean with respect to any share of the Stock that such share is no longer
Restricted Stock subject to the restrictions on transfer set forth in Section 2
and that such share is released from the Repurchase Option. If Recipient would
become vested in any fraction of a share of Stock on any date, such fractional
share shall not vest and shall remain Restricted Stock until the Recipient
becomes vested in the entire share. The shares of Stock subject to this
Agreement shall vest as follows:
(a) 7,588,444 shares of Stock subject to this Agreement (subject
to appropriate adjustment for any stock splits, stock dividends and other
recapitalizations) shall be immediately vested on the date of this Agreement;
and
(b) the remaining 22,801,365 shares of Stock subject to this
Agreement (subject to appropriate adjustment for any stock splits, stock
dividends and other recapitalizations) shall vest in forty-eight (48) equal
monthly installments commencing on the one (1) month anniversary of the date of
this Agreement and continuing thereafter until all shares of Stock have become
fully vested.
Notwithstanding the vesting schedule set forth in this Section 3, upon a
termination by the Company of Recipient's employment without Cause (as defined
below):
(i) prior to a Change of Control (as defined below) and on a date
that the Average Market Capitalization (as defined below) is less than Two
Billion Dollars ($2,000,000,000), twenty five percent (25%) of the remaining
shares of Restricted Stock shall become immediately vested and released from the
Company's Repurchase Option;
(ii) prior to a Change of Control and on a date that the Average
Market Capitalization is equal to or exceeds Two Billion Dollars
($2,000,000,000), twenty five percent (25%) of the remaining shares of
Restricted Stock shall become immediately vested and released from the Company's
Repurchase Option and twelve and one-half percent (12 1/2%) of the remaining
shares of Restricted Stock shall continue to vest in six equal monthly
installments commencing on the one (1) month anniversary of the date of
termination; and
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(iii) after the effective date of a Change of Control, fifty
percent (50%) of the remaining shares of Restricted Stock shall continue to vest
in twelve (12) equal monthly installments commencing on the one (1) month
anniversary of the date of termination, provided that no monthly installment
shall vest at any time after the Executive shall have breached in any material
respect any of his obligations under Section 7 of that certain Employment
Agreement entered into as of the date hereof by and between Recipient and
Company.
For the purpose of this Section 3, "Change of Control" shall mean a sale of
all or substantially all of the Company's assets, or any merger or consolidation
of the Company with or into another corporation; other than a merger or
consolidation in which the holders of more than 50% of the shares of capital
stock of the Company outstanding immediately prior to such transaction continue
to hold (either by the voting securities remaining outstanding or by their being
converted into voting securities of the surviving entity) more than 50% of the
total voting power represented by the voting securities of the Company, or such
surviving entity, outstanding immediately after such transaction.
For the purpose of this Section 3 "Cause" shall mean: (i) the conviction
of any felony or any crime involving moral turpitude or dishonesty; (ii) willful
breach of the Company's policies which adversely affects the Company in a
material way; or (iii) causing material intentional damage to the Company's
property or business. For the above purposes, a termination by the Company
without Cause includes a termination of employment by Recipient within 30 days
following any of the following events: (x) the assignment of any duties to
Recipient inconsistent with, or reflecting a material adverse change in,
Recipient's position, duties, responsibilities or status with the Company, or
the removal of Recipient from, or failure to reelect Recipient to, any of such
positions; or (y) the relocation of the Company's principal executive offices,
or relocating Recipient's principal place of business in excess of fifty (50)
miles from the Company's current principal place of business.
For the purpose of this Section 3 "Average Market Capitalization" shall
mean (i) if the Company's securities are traded on a securities exchange or
through the Nasdaq National Market, the average of the market capitalization of
the Company for the period beginning fifteen (15) days before the date of
termination and ending fifteen (15) days after the date of termination and (ii)
if the Company's securities are not traded on a securities exchange or through
the Nasdaq National Market, the market capitalization of the Company as
determined in good faith by the Board of Directors of the Company.
4. Withholding of Taxes. Recipient shall provide the Company with a
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copy of any timely election made pursuant to Section 83(b) of the Internal
Revenue Code or similar provision of state law (collectively, an "83(b)
Election"), a form of which election is attached hereto as Exhibit C. If
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Recipient makes a timely 83(b) Election, Recipient shall immediately pay the
Company the amount necessary to satisfy any applicable federal, state, and local
income and employment tax withholding requirements. If Recipient does not make
a timely 83(b) Election, Recipient shall, either at the time that the
restrictions lapse under this Agreement or at the time withholding is otherwise
required by any applicable law, pay the Company the amount necessary to satisfy
any applicable federal, state, and local income and employment tax withholding
requirements.
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5. Additional Securities. Any securities received as the result of
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ownership of Restricted Stock (hereinafter called "Additional Securities"),
including, without limitation, warrants, options and securities received as a
stock dividend or stock split, or as a result of a recapitalization or
reorganization, shall be retained by the Company in the same manner and subject
to the same conditions as the Restricted Stock with respect to which they were
issued. Recipient shall be entitled to direct the Company to exercise any
warrant or option received as Additional Securities upon supplying the funds
necessary to do so, in which event the securities so purchased shall constitute
Additional Securities, but the Recipient may not direct the Company to sell any
such warrant or option. If Additional Securities consist of a convertible
security, Recipient may exercise any conversion right, and any securities so
acquired shall be deemed Additional Securities. Additional Securities shall be
subject to the provisions of Sections 2 and 3 above in the same manner as the
Restricted Stock.
6. Investment Representations.
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(a) This Agreement is made in reliance upon the Recipient's
representation to the Company, which by its acceptance hereof the Recipient
hereby confirms, that the shares of Stock to be received by Recipient will be
acquired for investment for his or her own account, not as a nominee or agent,
and not with a view to the sale or distribution of any part thereof, and that he
or she has no present intention of selling, granting participation in, or
otherwise distributing the same, but subject nevertheless to any requirement of
law that the disposition of his or her property shall at all times be within his
or her control.
(b) The Recipient understands that the Stock is not registered
under the Securities Act of 1933, as amended (the "1933 Act"), on the basis that
the sale provided for in this Agreement and the issuance of securities hereunder
is exempt from registration under the 1933 Act pursuant to Section 4(2) thereof,
and that the Company's reliance on such exemption is predicated on the
Recipient's representations set forth herein. The Recipient realizes that the
basis for the exemption may not be present if, notwithstanding such
representations, the Recipient has in mind merely acquiring shares of the Stock
for a fixed or determinable period in the future, or for a market rise, or for
sale if the market does not rise. The Recipient does not have any such
intention.
(c) The Recipient understands that the Stock may not be sold,
transferred, or otherwise disposed of without registration under the 1933 Act or
an exemption therefrom, and that in the absence of an effective registration
statement covering the Stock or an available exemption from registration under
the 1933 Act, the Stock must be held indefinitely. In particular, the Recipient
is aware that the Stock may not be sold pursuant to Rule 144 or Rule 701
promulgated under the 1933 Act unless all of the conditions of the applicable
Rules are met. Among the conditions for use of Rule 144 is the availability of
current information to the public about the Company. Such information is not now
available, and the Company has no present plans to make such information
available. The Recipient represents that, in the absence of an effective
registration statement covering the Stock, it will sell, transfer, or otherwise
dispose of the Stock only in a manner consistent with its representations set
forth herein and then only in accordance with the provisions of paragraph 6(d)
hereof.
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(d) The Recipient agrees that in no event will it make a transfer
or disposition of any of the Stock (other than pursuant to an effective
registration statement under the 1933 Act), unless and until (i) the Recipient
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
disposition, and (ii) if requested by the Company, at the expense of the
Recipient or transferee, the Recipient shall have furnished to the Company
either (A) an opinion of counsel, reasonably satisfactory to the Company, to the
effect that such transfer may be made without registration under the 1933 Act or
(B) a "no action" letter from the Securities and Exchange Commission to the
effect that the transfer of such securities without registration will not result
in a recommendation by the staff of the Securities and Exchange Commission that
action be taken with respect thereto.
(e) The Recipient represents and warrants to the Company that he
or she is an "accredited investor" within the meaning of Securities and Exchange
Commission Rule 501 of Regulation D, as presently in effect and, for the purpose
of Section 25102(f) of the California Corporations Code, he or she is excluded
from the count of "purchasers" pursuant to Rule 260.102.13 thereunder.
7. Legends; Stop Transfer.
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(a) All certificates for shares of the Stock shall bear
substantially the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. 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 COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS
OF THAT CERTAIN RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE
COMPANY AND THE NAMED SHAREHOLDER. THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH SUCH AGREEMENT,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
(b) The certificates for shares of the Stock shall also bear any
legends required by applicable state corporate or securities laws.
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(c) In addition, the Company shall make a notation regarding the
restrictions on transfer of the Stock in its stockbooks, and shares of the Stock
shall be transferred on the books of the Company only if transferred or sold
pursuant to an effective registration statement under the 1933 Act covering such
shares or pursuant to and in compliance with the provisions of paragraph 6(d)
hereof.
8. NO EFFECT ON TERMS OF EMPLOYMENT. THIS AGREEMENT SHALL NOT
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CONFER UPON RECIPIENT ANY RIGHT WITH RESPECT TO CONTINUATION OF RECIPIENT'S
EMPLOYMENT WITH THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH THE RIGHT OF
RECIPIENT OR THE COMPANY TO TERMINATE RECIPIENT'S EMPLOYMENT WITH THE COMPANY AT
ANY TIME FOR ANY REASON WITH OR WITHOUT CAUSE OR CHANGE THE TERMS OF EMPLOYMENT
OF RECIPIENT.
9. Lock-Up Agreement.
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(a) Agreement. Recipient, if requested by the Company and the
lead underwriter of any public offering of the Common Stock or other securities
of the Company (the "Lead Underwriter"), hereby irrevocably agrees not to sell,
contract to sell, grant any option to purchase, transfer the economic risk of
ownership in, make any short sale of, pledge or otherwise transfer or dispose of
any interest in any Common Stock or any securities convertible into or
exchangeable or exercisable for or any other rights to purchase or acquire
Common Stock (except Common Stock included in such public offering or acquired
on the public market after such offering) during the up to 180-day period
following the effective date of a registration statement of the Company filed
under the Securities Act, or such shorter period of time as the Lead Underwriter
shall specify. Recipient further agrees to sign such documents as may be
requested by the Lead Underwriter to effect the foregoing and agrees that the
Company may impose stop-transfer instructions with respect to such Common Stock
subject until the end of such period. The Company and Recipient acknowledge that
each Lead Underwriter of a public offering of the Company's stock, during the
period of such offering and for the 180-day period thereafter, is an intended
beneficiary of this Section 9.
(b) Permitted Transfers. Notwithstanding the foregoing, Section
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9(a) hereof shall not prohibit Recipient from transferring any shares of Common
Stock or securities convertible into or exchangeable or exercisable for the
Company's Common Stock to the extent such transfer is not otherwise prohibited
by this Agreement, either during Recipient's lifetime or on death by will or
intestacy to Recipient's immediate family or to a trust the beneficiaries of
which are exclusively Recipient and/or a member or members of Recipient's
immediate family; provided, however, that prior to any such transfer, each
transferee shall execute an agreement pursuant to which each transferee shall
agree to receive and hold such securities subject to the provisions of this
Section 9. For the purposes of this paragraph, the term "immediate family" shall
mean spouse, lineal descendant, father, mother, brother or sister of the
transferor.
(c) No Amendment Without Consent of Underwriter. During the
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period from identification as a Lead Underwriter in connection with any public
offering of the Company's Common Stock until the earlier of (i) the expiration
of the lock-up period specified in Section 9(a) hereof in connection with such
offering or (ii) the abandonment of such offering
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by the Company and the Lead Underwriter, the provisions of this Section 9 may
not be amended or waived except with the consent of the Lead Underwriter.
10. California Law. This agreement is to be construed in accordance
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with and governed by the internal laws of the State of California as permitted
by Section 1646.5 of the California Civil Code (or any similar successor
provision) without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of California to the rights and duties of the parties.
11. Notice. Any notice required to be given under the terms of this
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Agreement shall be addressed to the Company in care of its Secretary at the
office of the Company at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, and any notice to be given to Recipient shall be addressed to
him at the address given by Recipient beneath his or her signature to this
Agreement, or such other address as either party to this Agreement may hereafter
designate in writing to the other. Any such notice shall be deemed to have been
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, registered or certified and deposited (postage or registration or
certification fee prepaid) in a post office or branch post office regularly
maintained by the United States.
12. Successors. This Agreement shall be binding upon and inure to the
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benefit of any successor or successors of the Company. Where the context
permits, "Recipient" as used in this Agreement shall include Recipient's
executor, administrator or other legal representative or the person or persons
to whom Recipient's rights pass by will or the applicable laws of descent and
distribution.
13. Spousal Consent. Recipient shall cause his or her spouse to
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execute a Consent of Spouse in substantially the form of that attached hereto as
Exhibit D concurrently with the execution of this Agreement or, if later, at the
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time Recipient becomes married.
14. California Securities Law. THE SALE OF THE SECURITIES WHICH ARE
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THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA, AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
15. Registration Rights. As soon as practicable after execution of
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this Agreement by the Company and Recipient, the Company shall use commercially
reasonable efforts to amend that certain Investors' Rights Agreement dated as of
May 21, 1999 among the Company, the investors and the other parties named
therein to include in the definition of "Founders' Shares" the shares of Stock
issued to Recipient hereunder.
16. Employee and Employment References. References in this Agreement
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that imply that the Recipient is an employee of the Company, including, without
limitation,
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references regarding Recipient's employment with the Company, shall be deemed to
include services provided to the Company by Recipient in a consulting capacity
and, to the extent that Recipient is providing services in a consulting
capacity, shall not be deemed to imply that Recipient is an employee of the
Company.
17. Section 4999 Taxes. In the event that the acceleration of vesting
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described in Section 3 to be provided to Recipient under this Agreement,
together with any other benefits payable in connection with a Change of Control
(collectively, "Change of Control Benefits") (i) constitute "excess parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code") and (ii) but for this Section 17, would be subject
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to the excise tax imposed by Section 4999 of the Code, the following provisions
shall apply:
(a) Recipient agrees that Company may, in its discretion but only
with the written consent of Recipient, seek shareholder approval of such Change
of Control Benefits in accordance with Proposed Treasury Regulation section
1.280G-1, Q&A-7. In accordance therewith, Recipient agrees that his right to
receive such Change of Control Benefits, to the extent such Change of Control
Benefits have a value (as determined in accordance with the rules under Proposed
Regulations Section 1.280G-1, Q&A-24) that equals or exceeds the amount that
would cause any portion of such Change of Control Benefits to be treated as an
"excess parachute payment" (the "Excess Change of Control Benefits") shall be
determined by such shareholder approval such that in the event such shareholder
approval is not obtained, he shall have no right to such Excess Change of
Control Benefits.
(b) In the event Company determines not to seek shareholder
approval of such Change of Control Benefits or Recipient declines to consent
thereto, Recipient's Change of Control Benefits shall be payable, at Recipient's
sole election, either:
(i) in full, notwithstanding that all or some portion of
such benefits may be taxable under Section 4999 of the Code, or
(ii) as to such lesser amount which would result in no
portion of such Change of Control Benefits being subject to excise tax under
Section 4999 of the Code.
Unless Company or Recipient otherwise agree in writing, any determination
required under this Section 17 shall be made in writing by independent public
accountants appointed by Recipient and reasonably acceptable to Company (the
"Accountants"), whose determination shall be conclusive and binding upon
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Recipient and Company for all purposes. For purposes of making the calculations
required by this Section 17, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999 of
the Code. Company and Recipient shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section 17. Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 17.
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(c) Company agrees that Recipient shall not be subject to
withholding by the Company for any amount that may become payable by Recipient
under Section 4999 of the Code until such time as Recipient's employment is
terminated by the Company without Cause.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Restricted Stock Purchase Agreement as of the date first above written.
BROADBAND SPORTS, INC., RECIPIENT:
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxx, President and Chief Xxxxxxx Xxxxxx
Executive Officer
Address: _________________________
_________________________
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EXHIBIT A
SECURED, FULL-RECOURSE
PROMISSORY NOTE
$15,200,906.40 November 24, 1999
FOR VALUE RECEIVED, the undersigned, Xxxxxxx Xxxxxx ("Maker"),
promises to pay to Broadband Sports, Inc., a Delaware corporation ("Payee"), at
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or
such other place as Payee may from time to time designate, without counterclaim,
deduction or offset of any kind, in lawful money of the United States, the
principal sum of fifteen million, two hundred thousand, nine hundred and six
dollars and forty cents ($15,200,906.40) plus interest thereon, as set forth
below.
1. Interest. Interest on the principal sum of this Note shall accrue
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at the simple rate of 6.02% per annum, based on a 365 day year and the actual
number of days elapsed.
2. Principal and Interest Payments. On the ten (10) year anniversary
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of the date of this Note, all accrued interest on the outstanding principal
amount of this Note and the entire principal amount of this Note shall be due
and payable hereunder; provided, that, if such payment date is not a business
day, then payment shall be due on the first business day following such payment
date.
3. Prepayment.
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(a) Permissive. This Note may be prepaid in whole or in part, at
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any time, without penalty or premium.
(b) Mandatory Prepayment. Maker shall be required to prepay all
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principal and accrued but unpaid interest due under this Note within ninety (90)
days after a termination for any reason of Maker's employment with Payee.
4. Application of Payments. All payments and prepayments received
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by Payee shall be applied first to accrued interest, then to other charges due
with respect to this Note or the Pledge Agreement (as defined below), and then
to the unpaid principal balance.
5. Security. This Note shall be full-recourse and is secured by a
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Security Agreement in the form attached hereto as Attachment A (the "Security
Agreement"), encumbering the personal property of Maker, including certain
shares of Common Stock of Payee held by Maker, and the proceeds thereof (the
"Collateral").
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6. Default and Remedies.
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a. Default. Maker will be in default under this Note if (i) Maker
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fails to make a payment of principal and/or interest hereunder when due or
declared due, whether at scheduled maturity, by acceleration or otherwise,
within ten (10) business days after receipt of written notice of such
nonpayment; (ii) except as permitted by the Pledge Agreement, Maker agrees to or
does sell, convey, encumber, hypothecate or otherwise alienate the Collateral,
or any part thereof, of any interest therein, or if divested of its title to the
Collateral or any interest therein in any manner or any way, whether voluntarily
or involuntarily, without the prior written consent of Holder, or if any other
person or entity with a security interest in the Collateral exercises or seeks
to exercise the remedies of a secured party with respect to the Collateral; or
(iii) Maker files a petition in bankruptcy, is adjudicated insolvent, petitions
or applies to any tribunal for the appointment of a receiver, custodian, or any
trustee for Maker or commences any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction or any such proceeding has been commenced
against Maker which remains undismissed for a period of sixty (60) days.
b. Remedies. Upon Maker's default, Payee may (i) upon written
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notice to Maker, declare the entire principal sum and all accrued and unpaid
interest hereunder immediately due and payable and (ii) exercise any and all of
the remedies provided in the Pledge Agreement and applicable law.
7. Miscellaneous.
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a. All communications or notices required or given under this
Note shall be given in accordance with the provisions of Section 12(e) of the
Pledge Agreement.
b. This Note may be modified only by a written agreement
executed by Maker and Payee.
c. This Note shall be governed by California law.
d. The terms of this Note shall inure to the benefit of and bind
Maker and Payee and their respective heirs, legal representatives and successors
and assigns.
e. Time is of the essence with respect to all matters set forth
in this Note.
f. If this Note is destroyed, lost or stolen, Maker will deliver
a new note to Payee on the same terms and conditions as this Note with a
notation of the unpaid principal and accrued and unpaid interest in substitution
of the prior Note. Payee shall furnish to Maker reasonable evidence that the
Note was destroyed, lost or stolen and any security or indemnity that may be
reasonably required by Maker in connection with the replacement of this Note.
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IN WITNESS WHEREOF, Maker has executed this Note as of the date and
year first above written.
MAKER:
/s/ Xxxxxxx X. Xxxxxx
_____________________________
Xxxxxxx Xxxxxx
3
ATTACHMENT A
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is entered into as of November
24, 1999, by and between Xxxxxxx Xxxxxx ("Debtor") and Broadband Sports, Inc., a
Delaware corporation ("Secured Party").
RECITALS
A. Secured Party has loaned Debtor the principal sum of $15,200,906.40,
which is evidenced by a promissory note of even date herewith for such principal
amount (the "Note").
B. As a condition to making of the loan evidenced by the Note, Secured
Party has required that the Note be secured, upon the terms herein provided, by
certain shares of the Common Stock of Secured Party held by Debtor.
NOW, THEREFORE, in consideration of the foregoing and the further promises
contained herein, Debtor and Secured Party agree as follows:
AGREEMENT
1. Grant of Security Interest. To secure full payment and performance
of Debtor's obligations under the Note and each and every obligation of Debtor
under this Agreement (collectively the "Obligations"), when due (whether at the
stated maturity, by acceleration or otherwise), Debtor hereby pledges the
Collateral (defined below in Section 2), and grants a security interest in the
Collateral, to Secured Party.
2. Collateral. "Collateral" means all personal property of Debtor,
including, without limitation, 25,334,844 shares of the Common Stock of Secured
Party (the "Pledged Stock"), evidenced by Common Stock Certificate No. ____ (the
"Certificate"), duly registered in the name of Debtor, together with all
property rights as may derive from or accrue to the same, including without
limitation, additional shares (whether as a result of stock splits, stock
dividends or otherwise) or replacement securities representing interests in
Secured Party or an affiliate or successor in interest of Secured Party, and all
dividends (whether in cash, stock or other forms) and other income or proceeds
derived therefrom or receivable or received on the sale, exchange, collection or
other disposition thereof, whether voluntary or involuntary, and distributions
with respect thereto. For purposes of this Agreement, the term "proceeds"
includes whatever is receivable or received when Collateral or proceeds is sold,
collected, exchanged, or otherwise disposed of, whether such disposition is
voluntary or involuntary.
3. Delivery of Collateral. On or prior to the execution of this
Agreement, Debtor has delivered or will deliver the Certificate, together with a
stock power duly executed in blank by Debtor to the Secured Party for purposes
of perfecting Secured Party's security interest hereunder and in accordance with
the terms of this Agreement. Upon payment from time to time of the principal
amount of the Note, or any portion thereof, Secured Party shall, at Debtor's
1
request, take all steps reasonably necessary to cause the redelivery to Debtor
of such portion of the Collateral corresponding to such payment.
4. Stock Adjustments. Secured Party shall have the right to collect
and hold any shares of stock or securities of any class or kind distributed on
account of the Pledged Stock by reason of any stock dividend, distribution,
reclassification or other change in the capital structure of Secured Party, all
of which shall be delivered by Debtor to Secured Party and held by Secured Party
in accordance with the terms of this Agreement.
5. Covenants of Debtor. In addition to other covenants of Debtor
contained in this Agreement, Debtor shall:
(i) from time to time promptly execute and deliver to
Secured Party all such stock powers, assignments, financing statements and other
instruments or documents as may be necessary in order to more fully evidence and
perfect the security interest of Secured Party in the Collateral and promptly
furnish Secured Party with any information or writings which Secured Party may
reasonably request concerning the Collateral;
(ii) appear in and defend any action or proceeding which may
affect Debtor's title to or Secured Party's interest in the Collateral; and
(iii) keep the Collateral free of all levies and security
interests or other liens or charges except those approved in writing by Secured
Party.
6. Debtor's Rights in Collateral.
(a) The parties agree that the grant of a security interest in,
and the assignment and pledge of, the Collateral to Secured Party hereunder is
intended solely for the purpose of securing the Obligations. Accordingly, prior
to the occurrence of an Event of Default (as that term is defined in Section 10)
and the exercise of rights and remedies afforded Secured Party as a result of
such Event of Default, and to the extent not inconsistent with the terms of this
Agreement, Debtor will be entitled to exercise rights as the owner of the
Pledged Stock and will be entitled to receive and retain, any cash distributions
or allocations ("Distributions") and to exercise any other rights appurtenant to
the ownership of the Collateral. Without limiting the generality of the
foregoing, prior to the occurrence of an Event of Default, Debtor will have the
sole and absolute right to:
(i) vote or exercise any and all other consensual rights in
respect of the Collateral, provided, however, that Debtor may not consent to any
-------- -------
amendment or modification of the Certificate of Incorporation or Bylaws of
Debtor that materially adversely affects Secured Party's interest in the
Collateral (including, without limitation, any amendment or modification
creating additional or different transfer restrictions on the Common Stock of
Debtor in a manner that is different from any other shares of Debtor's Common
Stock); and
(ii) receive, retain, use or alienate any Distributions free and
clear of the interest of Secured Party.
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(b) After an Event of Default and the exercise of rights and
remedies by Secured Party, all rights of Debtor to exercise the voting and other
contractual rights which it would otherwise be entitled to exercise pursuant to
this Section 6 and to receive and retain the Distributions which it would
otherwise be authorized to receive and retain under this Section 6 will cease.
Following the occurrence of an Event of Default and pending delivery to Secured
Party of any Distributions, Debtor will hold the same in trust for Secured
Party, free and clear of all liens and claims whatsoever other than the interest
of Secured Party.
7. Representations and Warranties. Debtor represents and
warrants to Secured Party that:
(i) The execution, delivery and performance of this
Agreement does not conflict with any law or any agreement or undertaking of
which Debtor is a party or by which Debtor is bound;
(ii) Except for the rights of Debtor and Secured Party, no
other person will have any right, title, claim or interest (by way of security
interest or other lien or charge or otherwise) in, against or to the Collateral;
and
(iii) All information presently or subsequently supplied to
Secured Party by or on behalf of Debtor with respect to the Collateral is true
and correct.
8. Rights of Secured Party.
(a) Secured Party, upon ten (10) days written notice to Debtor
if Debtor fails to perform any of its obligations hereunder, may, but need not,
perform such acts to preserve its rights and the value of the Collateral. Debtor
hereby irrevocably appoints Secured Party as Debtor's attorney-in-fact (which
appointment is coupled with an interest) to do any such act, and to exercise
such rights and powers as Debtor might exercise with respect to the Collateral
in connection therewith. No failure to so act by Secured Party will relieve
Debtor of Debtor's duties under this Agreement or in any way impair or discharge
the obligations, and no such failure to act will result in any liability to
Debtor or any third party on the part of Secured Party.
(b) Secured Party does not assume any of the obligations or
liabilities of Debtor arising under any of the Collateral or any agreement in
respect thereto.
9. Care of Collateral.
(a) Secured Party will use reasonable care in the custody and
preservation of any Collateral in its possession. The parties further agree that
such care as Secured Party gives to the safekeeping of its own property of like
kind will constitute reasonable care of the Collateral when in Secured Party's
possession; provided, however, that Secured Party will not be required to make
any presentment, demand or protest, or give any notice and need not take any
action to preserve any rights any prior party or any other person in connection
with the Obligations or with respect to the Collateral.
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(b) Secured Party will not be responsible for or have any
liability for the form, legal sufficiency, genuineness, or legal effect of any
signature, description, guaranty, instruction, or document related to the
Collateral.
(c) Debtor agrees that Secured Party will not in any way or
manner be liable or responsible for any diminution in the value of the
Collateral resulting from the sale or other disposition of the Collateral at
Debtor's request, or from the failure of Secured Party to sell or consent to the
sale, liquidation, reinvestment or other disposition of the Collateral, or for
any act or default by any bailee, forwarding agency, transfer agent or any
person whomsoever, in connection with the Collateral.
10. Default. An "Event of Default" will have occurred if:
(a) There is an occurrence of an event of default under the
Note, subject to applicable grace periods, if any; or
(b) Debtor breaches any provision of this Agreement, and such
breach continues after written notice from Secured Party for a period of ten
(10) business days or such longer period of time reasonably required to remedy
the breach, provided Debtor promptly commences remedial action with ten (10)
business days of such written notice and thereafter diligently pursues the
remedial action.
11. Remedies.
(a) Upon the occurrence of an Event of Default, as defined in
Section 10 above, Secured Party may, at Secured Party's option:
(i) exercise with respect to the Collateral all of the
remedies of a secured party under Articles 8 and 9 of the California Commercial
Code (the "Code"). Without limiting the foregoing and subject to subsection (b)
below, Secured Party shall have the right to sell or otherwise dispose of the
Collateral in accordance with the provisions of the Code. At any such sale,
Secured Party shall have the right to purchase all or any part of the Collateral
and may credit bid amounts owing under the Note. In view of the fact that
federal and state securities laws may impose certain restrictions on the method
by which a sale of the Pledged Stock and any other Collateral consisting of
securities may be effected, Debtor agrees that upon the occurrence of an Event
of Default, Secured Party may from time to time attempt to sell all or any part
of the Pledged Stock and any other Collateral consisting of securities by means
of a private placement restricting the prospective purchasers to those who
satisfy the requirements for available exemptions under applicable securities
laws. In so doing, Secured Party may solicit offers to buy the Pledged Stock and
any other Collateral consisting of securities from a limited number of investors
deemed by Secured Party to satisfy those standards. If Secured Party solicits
such offers from not less than three (3) such investors, then the acceptance by
Secured Party of the highest offer(s) obtained therefrom shall be deemed to be a
commercially reasonable method of disposition of the Pledged Stock and any other
Collateral consisting of securities. Debtor further agrees that, to the extent
notice of sale shall be required by law, ten (10) days' prior notice to Debtor
shall constitute reasonable notice. Secured Party shall not be obligated to
proceed with any sale of Collateral regardless of notice of sale having been
given. Nothing herein shall be
4
deemed to limit or restrict Secured Party in disposing of the Collateral in
other commercially reasonable ways;
(ii) exercise any and all remedies available under law or in
equity; and
(iii) recover from Debtor all costs and expenses, including
attorneys' fees and expenses, incurred by Secured Party in exercising any right
or remedy provided for hereunder or by law, which costs and expenses are
included in the Obligations secured by the Collateral.
(b) Nothing herein shall be construed to limit Secured
Party's right to seek a deficiency judgment against Debtor.
(c) No delay or omission to exercise any right or remedy of
Secured Party upon a default by Debtor will constitute a waiver of any right or
remedy of Secured Party or be construed as a waiver of any similar default which
occurs later. Debtor waives any right to require Secured Party to proceed
against any other person or to exhaust any Collateral or to pursue any other
remedy in Secured Party's power.
(d) It is the intention of the parties that the grant of the
security interest and assignment and pledge of the Collateral to Secured Party,
and the exercise by Secured Party of any right or remedy granted in this
Agreement, is in addition to all other security interests and remedies given to
Secured Party by virtue of any statute or rule of law or any other agreement,
all of which security interests and remedies are cumulative and, to the maximum
extent permitted by applicable law, may be exercised successively and
concurrently without impairing the rights and remedies of Secured Party under
this Agreement.
12. Miscellaneous.
(a) Successors. The terms of this Agreement will inure to the
benefit of and bind the parties hereto and their respective successors, assigns,
executors, heirs and legal representatives.
(b) Entire Agreement; Severability. This Agreement contains
the entire security agreement between Secured Party and Debtor with respect to
the Pledged Stock and may be modified only by a writing signed by Secured Party
and Debtor. If any of the provisions of this Agreement are held invalid or
unenforceable, this Agreement will be construed as if not containing the invalid
or unenforceable provisions.
(c) Choice of Law. This Agreement will be construed in
accordance with and governed by the laws of the State of California.
(d) Attorneys' Fees. In any action brought to enforce the
terms of this Agreement, the prevailing party will be reimbursed by the losing
party for its reasonable costs and expenses incurred in such action, including
reasonable attorneys' fees.
(e) Notices. All notices, requests, demands and other
communications to be given pursuant to the terms of this Agreement shall be in
writing and shall be delivered
5
personally, telecopied or sent by recognized overnight delivery service, and
shall be deemed given when so delivered personally, telecopied or received, as
follows
(i) If to Secured Party:
Broadband Sports, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(ii) If to Debtor:
Xxxxxxx Xxxxxx
_____________________
_____________________
Any party may change its address or telecopier number by prior
written notice to the other party.
(f) Time. Time is of the essence of each and every provision
of this Agreement.
(g) Counterparts. This Agreement may be executed by facsimile
and in any number of counterparts, and when so executed shall have the same
force and effect as though all signatures appeared on one document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
SECURED PARTY:
BROADBAND SPORTS, INC.
By: ______________________
Title: ______________________
DEBTOR:
/s/ Xxxxxxx X. Xxxxxx
___________________________
Xxxxxxx Xxxxxx
6
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock
Purchase Agreement between the undersigned ("Recipient") and Broadband Sports,
Inc. dated __________ ____, 1999 (the "Agreement"), Recipient hereby sells,
assigns and transfers unto _______________ _________________ (_________) shares
of Common Stock of Broadband Sports, Inc. standing in Recipient's name on the
books of said corporation represented by Certificate No. _________ herewith and
does hereby irrevocably constitute and appoint
_____________________________________________________________ to transfer said
stock on the books of the within-named corporation with full power of
substitution in the premises. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY
THE AGREEMENT AND THE EXHIBITS THERETO.
Dated: November 24, 1999 By: /s/ Xxxxxxx X. Xxxxxx
------------------ ----------------------------
Instruction: 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 Recipient.
1
EXHIBIT C
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED
The undersigned taxpayer hereby elects, pursuant to the Internal
Revenue Code, as amended, to include in gross income for 1999 the amount of any
compensation taxable in connection with the taxpayer's receipt of the property
described below:
1. The name, address, taxpayer identification number and taxable year
of the undersigned are:
TAXPAYER'S NAME: Xxxxxxx Xxxxxx
SPOUSE'S NAME: Xxxxxx X. Xxxxxx
TAXPAYER'S SOCIAL SECURITY NO.: ###-##-####
SPOUSE'S SOCIAL SECURITY NO.: ###-##-####
TAXABLE YEAR: Calendar Year 1999
ADDRESS: _________________________
_________________________
2. The property which is the subject of this election is: 22,801,365
shares of Common Stock (the "Shares") of Broadband Sports, Inc., a Delaware
corporation (the "Company").
3. The Shares were transferred to the undersigned on November 24,
1999 (the "Transfer Date").
4. The Shares are subject to the following restriction: The Shares
shall vest, and the Company's repurchase right shall lapse in forty-eight (48)
equal monthly installments commencing on the one (1) month anniversary of the
Transfer Date. Upon a termination of the undersigned's employment with the
Company, the Company has the right to repurchase unvested Shares at the original
purchase price, subject to the terms of the Restricted Stock Purchase Agreement.
5. The fair market value of the property at the time of transfer
(determined without regard to any restriction other than a restriction which by
its terms will never lapse) is: $0.60 per Share x 22,801,365 Shares =
$13,680,819.00.
1
6. The undersigned paid $0.60 per Share x 22,801,365 Shares for the
Shares transferred or a total of $13,680,819.00. The undersigned has submitted a
copy of this statement to the Company.
The undersigned has submitted a copy of this statement to the person
for whom the services were performed in connection with the undersigned's
receipt of the above-described property. The undersigned taxpayer is the person
performing the services in connection with the transfer of said property.
The undersigned will file this election with the Internal Revenue
Service office in which he or she files his or her annual income tax return not
later than 30 days after the date of transfer of the property. A copy of the
election also will be furnished to the person for whom the services were
performed. Additionally, the undersigned will include a copy of the election
with his or her income tax return for the taxable year in which property is
transferred. The undersigned understands that this election will also be
effective as an election under California law.
The undersigned understands that the foregoing election may not be
revoked except with the consent of the Commissioner of the Internal
Revenue Service.
DATED: November 24, 1999 /s/ Xxxxxxx X. Xxxxxx
----------------- ------------------------------
The undersigned spouse of taxpayer joins in this election.
DATED: November 24, 1999. /s/ Xxxxxx X. Xxxxxx
----------------- ------------------------------
Spouse of Taxpayer
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EXHIBIT D
CONSENT OF SPOUSE
I, Xxxxxx Xxxxxx, spouse of Xxxxxxx Xxxxxx, have read and approved the
-------------
foregoing Agreement. In consideration of the right of my spouse to purchase
shares of Broadband Sports, Inc. as set forth in the Agreement, I hereby appoint
my spouse as my attorney-in-fact in respect to the exercise of any rights under
the Agreement insofar as I may have any rights under the community property laws
of the State of California or similar laws relating to marital property in
effect in the state of our residence as of the date of the signing of the
foregoing Agreement.
Dated: November 24, 1999 /s/ Xxxxxx X. Xxxxxx
----------------- -----------------------------
