FOUNDER STOCK PURCHASE AGREEMENT
FOUNDER
STOCK PURCHASE AGREEMENT
THIS
AGREEMENT is made as of the 26th
day of
January, 2000 (the "Effective
Date")
by and
between Wintegra, Inc., a Delaware corporation (the "Company"),
and
Xxxxx Xxx-Xxx (the "Purchaser").
WITNESSETH:
WHEREAS,
the Company desires to issue and sell to the Purchaser and the Purchaser desires
to purchase from the Company capital stock of the Company as herein described
according to the terms and subject to the conditions hereinafter set
forth.
WHEREAS,
the Purchaser is an employee, officer and/or director of the
Company.
NOW,
THEREFORE, in consideration for the mutual promises and covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as
follows:
1. Number
of Shares and Price Per Share.
The
Purchaser hereby agrees to purchase from the Company and the Company agrees
to
sell to Purchaser 4,294,479 shares of the Company's Common Stock, $.001 par
value (the "Stock")
at a
purchase price of $.001 per share or an aggregate price of $4,294.48, payable
by
Purchaser concurrently with Purchaser's execution of this agreement. The
purchase price for the Stock shall be payable in the form of services provided
to the Company. Purchaser agrees to execute the Assignment Agreement and such
other documents as the Company may from time to time request to confirm such
transfer. The closing of such purchase shall occur immediately upon execution
of
this Agreement.
2. Vesting
of Shares.
The
Stock shall be fully vested upon issuance.
3. Market
Stand-Off Agreement.
The
Purchaser, if requested by the Company and an underwriter of common stock (or
other securities) of the Company, shall agree not to sell or otherwise transfer
or dispose of any securities held by the Purchaser during the one hundred eighty
(180) day period following the effective date of a registration statement of
the
Company filed under the Securities Act of 1933, as amended (the "Securities
Act")
provided that:
(a) such
agreement shall only apply to the first such registration statement of the
Company including shares of common stock (or other securities) to be sold on
its
behalf to the public in an underwritten offering; and
(b) all
securities holders of the Company holding more than one percent of the
outstanding voting stock, all officers and directors of the Company and all
other holders of registration rights of the Company (whether or not pursuant
to
this agreement) agree to be bound by similar instructions. Such agreement shall
be in writing in the form satisfactory to the Company and such underwriter.
The
Company may impose stop-transfer instructions with respect to the Securities
subject to the foregoing restriction until the end of the foregoing
period.
4. Stock
Dividends, etc.
If,
from time to time, there is any stock dividend, stock split or other change
in
the character or amount of any of the outstanding stock of the Company, then
in
such event any and all new substituted or additional securities to which the
Purchaser is entitled by reason of the Purchaser's ownership of the shares
acquired pursuant to this Agreement shall be considered Stock and shall be
immediately subject to all the terms of this Agreement.
5. Legends.
All
certificates representing any shares of Stock subject to the provisions of
this
Agreement shall have endorsed thereon the following legends:
(a) "THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144
UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER
OF
THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH
SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
(b) Any
legend required to be placed thereon by applicable state or federal security
laws.
6. Warranties
and Representations.
In
connection with the proposed purchase of the Stock, the Purchaser hereby agrees,
represents and warrants as follows:
(a) The
Purchaser is purchasing the Stock solely for the Purchaser's own account for
investment and not with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act. The Purchaser
further represents that the Purchaser does not have any present intention of
selling, offering to sell or otherwise disposing of or distributing the Stock
or
any portion thereof, and that the entire legal and beneficial interest of the
Stock the Purchaser is purchasing is being purchased for, and will be held
for
the account of, the Purchaser only and neither in whole nor in part for any
other person.
(b) The
Purchaser is aware of the Company's business affairs and financial condition
and
has acquired sufficient information about the Company to reach an informed
and
knowledgeable decision to acquire the Stock. The Purchaser further represents
and warrants that the Purchaser has discussed the Company and its plans,
operations and financial condition with its officers, has received all such
information as the Purchaser deems necessary and appropriate to enable the
Purchaser to evaluate the financial risk inherent in making an investment in
the
Stock and has received satisfactory and complete information concerning the
business and financial condition of the Company in response to all inquiries
in
respect thereof.
(c) The
Purchaser realizes that the Purchaser's purchase of the Stock will be a highly
speculative investment, and the Purchaser is able, without impairing the
Purchaser's financial condition, to hold the Stock for an indefinite period
of
time and to suffer a complete loss on the Purchaser's investment.
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(d) The
Company has disclosed to the Purchaser that:
(i) The
sale
of the Stock has not been registered under the Securities Act, and the Stock
must be held indefinitely unless a transfer of it is subsequently registered
under the Securities Act or an exemption from such registration is available,
and that the Company is under no obligation to register the Stock;
(ii) The
Company will make a notation in its records of the aforementioned restrictions
on transfer and legends.
(e) The
Purchaser is aware of the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or an affiliate of such issuer), in a non-public offering subject
to
the satisfaction of certain conditions, including among other things: the resale
occurring not less than one year from the date the Purchaser has purchased
and
paid for the Stock; the availability of certain public information concerning
the Company; the sale being through a broker in an unsolicited "broker's
transaction" or in a transaction directly with a market maker (as said term
is
defined under the Securities Exchange Act of 1934, as amended); and that any
sale of the Stock may be made by the Purchaser only in limited amounts during
any three-month period not exceeding specified limitations. The Purchaser
further represents that the Purchaser understands that at the time the Purchaser
wishes to sell the Stock there may be no public market upon which to make such
a
sale, and that, even if such a public market then exists, the Company may not
be
satisfying the current public information requirements of Rule 144, and
that, in such event, the Purchaser would be precluded from selling the Stock
under Rule 144 even if the one-year minimum holding period had been
satisfied. The Purchaser represents that the Purchaser understands that in
the
event all of the requirements of Rule 144 are not satisfied, registration
under the Securities Act or compliance with an exemption from registration
will
be required; and that, notwithstanding the fact that Rule 144 is not
exclusive, the staff of the Securities and Exchange Commission has expressed
its
opinion that persons proposing to sell private placement securities other than
in a registered offering and otherwise than pursuant to Rule 144 will have
a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their
own
risk.
(f) Without
in any way limiting the Purchaser's representations and warranties set forth
above, the Purchaser further agrees that the Purchaser shall in no event make
any disposition of all or any portion of the Stock which he or she is purchasing
unless and until:
(i) There
is
then in effect a Registration Statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with said
Registration Statement; or
(ii) The
Purchaser shall have (1) notified the Company of the proposed disposition
and furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (2) furnished the Company with an
opinion of the Purchaser's own counsel to the effect that such disposition
will
not require registration of such shares under the Securities Act, and such
opinion of the Purchaser's counsel shall have been concurred in by counsel
for
the Company, and the Company shall have advised the Purchaser of such
concurrence.
-3-
7. Transfers
in Violation of Agreement.
The
Company shall not be required (i) to transfer on its books any shares of
Stock of the Company 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.
8. Rights
as Stockholder.
Subject
to the provisions of this Agreement, the Purchaser shall, during the term of
this Agreement, exercise all rights and privileges of a shareholder of the
Company with respect to the Stock deposited in escrow.
9. Further
Instruments.
The
parties agree to execute such further instruments and to take such further
action as may reasonably be necessary to carry out the intent of this
Agreement.
10. Notice.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon personal delivery or upon deposit in the United
States Post Office, by registered or certified mail with postage and fees
prepaid, addressed to the other party hereto at the address hereinafter shown
below the Purchaser's signature or at such other address as such party may
designate by ten (10) days' advance written notice to the other party
hereto.
11. Successors
and Assigns.
This
Agreement shall inure to the benefit of the successors and assigns of the
Company and, subject to the restrictions on transfer herein set forth, be
binding upon the Purchaser, the Purchaser's heirs, executors, administrators,
successors and assigns.
12. Entire
Agreement; Amendments.
This
Agreement, together with the Exhibits hereto, shall be construed under the
laws
of the State of Delaware (as it applies to agreements between Delaware
residents, entered into and to be performed entirely within Delaware), and
constitutes the entire agreement of the parties with respect to the subject
matter hereof superseding all prior written or oral agreements, and no amendment
or addition hereto shall be deemed effective unless agreed to in writing by
the
parties hereto.
13. Right
to Specific Performance.
The
Purchaser agrees that the Company shall be entitled to a decree of specific
performance of the terms hereof or an injunction restraining violation of this
Agreement, said right to be in addition to any other remedies available to
the
Company.
14. Separability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect without being impaired or invalidated in
any
way and shall be construed in accordance with the purposes and tenor and effect
of this Agreement.
15. Tax
Election Notification.
The
Purchaser shall notify the Company in writing if the Purchaser files an election
pursuant to Section 83(b) of the Code, to be filed with the Internal
Revenue Service within thirty (30) days of the date of the sale herein
contemplated. The Company intends, in the event it does not receive from the
Purchaser evidence of such filing, to claim a tax deduction for any amount
which
would otherwise be taxable to the Purchaser in the absence of such an
election.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
| PURCHASER | COMPANY | ||
| WINTEGRA, INC. | |||
| /s/ Xxxxx Xxx-Xxx | /s/ Xxxxxx O'Dell | ||
| Xxxxx Xxx-Xxx | Xxxxxx O'Dell, Secretary | ||
| Address: | Address: | ||||
[Signature
Page of Founder Stock Purchase Agreement]
EXHIBIT
A
See
attached.
This
Assignment Agreement (this "Assignment")
is
made and entered into as of January 26, 2000 (the "Effective
Date")
by and
between Wintegra, Inc., a Delaware corporation (the "Company")
and
Xxxxx Xxx-Xxx (the "Purchaser").
In
consideration for the issuance of common stock, par value $.001 per share,
of
the Company (the "Stock")
upon
the terms and subject to the conditions of the Stock Purchase Agreement, dated
as of the Effective Date, between the Company and Purchaser (the "Stock
Purchase Agreement"),
Purchaser hereby irrevocably transfers and assigns to the Company any and all
worldwide right, title and interest (including but not limited to all real,
personal, copyright, trade secret, and patent interest) to any and all tangible
and intangible assets, products, business plans, discoveries, developments,
designs, improvements, inventions, formulas, processes, techniques, know-how,
data whether or not registrable or patentable under statute, whenever made
or
conceived or reduced to practice or learned by Purchaser, either alone or
jointly with others that are related to the business of the Company and other
assets identified on Schedule 1
attached
hereto (collectively, the "Contributed
Property").
Purchaser agrees that he has delivered and will deliver to the Company any
and
all documents and all other tangible products related to the Contributed
Property.
Purchaser
represents and warrants that Purchaser is the sole owner of all rights, title
and interest in the Contributed Property and that no other party has been
granted, transferred or assigned any right, title, or interest in the
Contributed Property. Purchaser is the developer of the Contributed Property,
and no other parties have provided services in conjunction with the discovery,
invention, authorship or development of the Contributed Property such that
the
other parties could successfully assert any right, title, or interest in the
Contributed Property. There are no currently unpaid or due domestic or foreign
taxes associated with the Contributed Property or Purchaser's ownership thereof,
and no domestic or foreign taxing or regulatory authority has any claim or
rights in the Contributed Property.
This
Assignment shall be construed in connection with the Stock Purchase Agreement
and supersedes any other prior agreements between the parties.
[The
remainder of this page intentionally left blank.]
The
undersigned have executed this Assignment as of the Effective Date.
| Wintegra, Inc. | ||
| a Delaware corporation | ||
| |
|
|
| By: | /s/ Xxxxxx O'Dell | |
| Name: | Xxxxxx O'Dell | |
| Title: | Vice President | |
| By: | /s/ Xxxxx Xxx-Xxx | |
| Xxxxx Xxx-Xxx | ||
SCHEDULE
1
CONTRIBUTED
PROPERTY
Business
Plan
Office
Furniture
