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EXHIBIT 10.6
PACKETVIDEO CORPORATION
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the
24th day of November, 1999, by and between PACKETVIDEO CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXX XXXXXXXX ("Purchaser").
WHEREAS, the Company desires to issue, and Purchaser desires to acquire,
stock of the Company as herein described, on the terms and conditions
hereinafter set forth;
WHEREAS, the issuance of common stock hereby is intended to comply with
the provisions of Section 4(2) of the Securities Act of 1933, as amended (the
"Act").
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. PURCHASE AND SALE OF STOCK. Purchaser hereby agrees to purchase from
the Company, and the Company hereby agrees to sell to Purchaser, an aggregate of
six hundred thousand (600,000) shares of the Common Stock of the Company (the
"Stock") at $0.25 per share, for an aggregate purchase price of one hundred
fifty thousand dollars ($150,000), payable in cash.
The closing hereunder, including payment for and delivery of the Stock
shall occur at the offices of the Company immediately following the execution of
this Agreement, or at such other time and place as the parties may mutually
agree.
2. REPURCHASE OPTION. In the event Purchaser's relationship with the
Company (or a parent or subsidiary of the Company), whether as an employee or
consultant, terminates, then the Company (or its designee) shall have an
irrevocable option (the "Repurchase Option"), for a period of ninety (90) days
after said termination, or such longer period as may be determined by the
Company if such later repurchase is deemed necessary by the Company for
treatment of all or part of its stock as Qualified Small Business Stock under
Section 1202 of the Internal Revenue Code of 1986, as amended (the "Code"), and
regulations promulgated thereunder, to repurchase from Purchaser or Purchaser's
personal representative, as the case may be, at the original price per share
indicated above paid by Purchaser for such Stock ("Option Price"), up to but not
exceeding the number of unvested shares of the Stock set forth on Exhibit A
hereto which is incorporated herein by this reference. The Company shall have a
unilateral right to assign the Repurchase Option to any person or entity
designated by the Board of Directors of the Company.
3. EXERCISE OF REPURCHASE OPTION. The Repurchase Option shall be
exercised by written notice signed by an officer of the Company or by any
assignee or assignees of the Company and delivered or mailed as provided in
Section 16a. Such notice shall identify the number of shares of Stock to be
purchased and shall notify Purchaser of the time, place and date for settlement
of such purchase, which shall be scheduled by the Company within the term of the
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Repurchase Option set forth in Section 2 above. The Company shall be entitled to
pay for any shares of Stock purchased pursuant to its Repurchase Option at the
Company's option in cash or by offset against any indebtedness owing to the
Company by Purchaser (including without limitation any Note given in payment for
the Stock), or by a combination of both. Upon delivery of such notice and
payment of the purchase price in any of the ways described above, the Company
shall become the legal and beneficial owner of the Stock being repurchased and
all rights and interest therein or related thereto, and the Company shall have
the right to transfer to its own name the Stock being repurchased by the
Company, without further action by Purchaser.
4. ADJUSTMENTS TO STOCK. If, from time to time, during the term of the
Repurchase Option there is any change affecting the Company's outstanding Common
Stock as a class that is effected without the receipt of consideration by the
Company (through merger, consolidation, reorganization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating,
dividend, combination of shares, change in corporation structure or other
transaction not involving the receipt of consideration by the Company), then any
and all new, substituted or additional securities or other property to which
Purchaser is entitled by reason of Purchaser's ownership of Stock shall be
immediately subject to the Repurchase Option and be included in the word "Stock"
for all purposes of the Repurchase Option with the same force and effect as the
shares of the Stock presently subject to the Repurchase Option, but only to the
extent the Stock is, at the time, covered by such Repurchase 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 Repurchase Option shall be appropriately
adjusted.
5. TERMINATION OF REPURCHASE OPTION. Sections 2, 3 and 4 of this
Agreement shall terminate upon the exercise in full or expiration of the
Repurchase Option, whichever first occurs.
6. ESCROW OF UNVESTED STOCK. As security for Purchaser's faithful
performance of the terms of this Agreement and to insure the availability for
delivery of Purchaser's Stock upon exercise of the Repurchase Option herein
provided for, Purchaser agrees, at the closing hereunder, to deliver to and
deposit with the Secretary of the Company or the Secretary's designee ("Escrow
Agent"), as Escrow Agent in this transaction, three (3) stock assignments duly
endorsed (with date and number of shares blank) in the form attached hereto as
Exhibit C, together with a certificate or certificates evidencing all of the
Stock subject to the Repurchase 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 Company and Purchaser set forth in Exhibit B attached hereto
and incorporated by this reference, which instructions shall also be delivered
to the Escrow Agent at the closing hereunder.
7. RIGHTS OF PURCHASER. Subject to the provisions of Sections 6, 8, 11
and 13 herein, Purchaser shall exercise all rights and privileges of a
shareholder of the Company with respect to the Stock.
8. LIMITATIONS ON TRANSFER. In addition to any other limitation on
transfer created by applicable securities laws, Purchaser shall not assign,
hypothecate, donate, encumber
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or otherwise dispose of any interest in the Stock while the Stock is subject to
the Repurchase Option. After any Stock has been released from the Repurchase
Option, Purchaser shall not assign, hypothecate, donate, encumber or otherwise
dispose of any interest in the Stock except in compliance with the provisions
herein and applicable securities laws. Furthermore, the Stock shall be subject
to any right of first refusal in favor of the Company or its assignees that may
be contained in the Company's Bylaws.
9. RESTRICTIVE LEGENDS. All certificates representing the Stock shall
have endorsed thereon legends in substantially the following forms (in addition
to any other legend which may be required by other agreements between the
parties hereto):
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
OPTION SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER,
OR SUCH HOLDER'S PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THIS COMPANY. ANY TRANSFER OR ATTEMPTED TRANSFER OF ANY
SHARES SUBJECT TO SUCH OPTION IS VOID WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT
OF THE COMPANY."
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED. 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."
(c) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE COMPANY AND/OR ITS ASSIGNEE(S) AS
PROVIDED IN THE BYLAWS OF THE COMPANY."
(d) Any legend required by appropriate state blue sky officials.
10. INVESTMENT REPRESENTATIONS. In connection with the purchase of the
Stock, Purchaser represents to the Company the following:
(a) 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. Purchaser is
purchasing the Stock for investment for Purchaser's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Act.
(b) Purchaser understands that the Stock has not been registered
under the Act by reason of a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of Purchaser's investment
intent as expressed herein.
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(c) Purchaser further acknowledges and understands that the Stock
must be held indefinitely unless the Stock is subsequently registered under the
Act or an exemption from such registration is available. Purchaser further
acknowledges and understands that the Company is under no obligation to register
the Stock. Purchaser understands that the certificate evidencing the Stock will
be imprinted with a legend which prohibits the transfer of the Stock unless the
Stock is registered or such registration is not required in the opinion of
counsel for the Company.
Purchaser is familiar with the provisions of Rules 144, under the Act,
as in effect from time to time, which, in substance, permit limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer), in a non-public offering
subject to the satisfaction of certain conditions. The Stock may be resold by
Purchaser in certain limited circumstances subject to the provisions of Rule
144, which requires, among other things: (i) the availability of certain public
information about the Company and (ii) the resale occurring following the
required holding period under Rule 144 after the Purchaser has purchased, and
made full payment of (within the meaning of Rule 144), the securities to be
sold.
(d) Purchaser further understands that at the time 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 current information requirements of Rule 144, and
that, in such event, Purchaser would be precluded from selling the Stock under
Rule 144 even if the minimum holding period requirement had been satisfied.
(e) Purchaser further warrants and represents that Purchaser has
either (i) preexisting personal or business relationships, with the Company or
any of its officers, directors or controlling persons, or (ii) the capacity to
protect his own interests in connection with the purchase of the Stock by virtue
of the business or financial expertise of himself or of professional advisors to
Purchaser who are unaffiliated with and who are not compensated by the Company
or any of its affiliates, directly or indirectly.
11. MARKET STAND-OFF AGREEMENT. Purchaser shall not sell, dispose of,
transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale,
any Common Stock of the Company held by Purchaser, including the Stock (the
"Restricted Securities"), for a period of time specified by the underwriter (not
to exceed one hundred eighty (180) days) following the effective date of a
registration statement of the Company filed under the Act. Purchaser agrees to
execute and deliver such other agreements as may be reasonably requested by the
Company and/or the underwriter which are consistent with the foregoing or which
are necessary to give further effect thereto. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to
Purchaser's Restricted Securities until the end of such period.
12. SECTION 83(b) ELECTION. Purchaser understands that Section 83(a) of
the Code, taxes as ordinary income the difference between the amount paid for
the Stock and the fair market value of the Stock as of the date any restrictions
on the Stock lapse. In this context, "restriction" includes the right of the
Company to buy back the Stock pursuant to the Xxxxxxxxxx
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Option set forth in Section 2a above. Purchaser understands that Purchaser may
elect to be taxed at the time the Stock is purchased, rather than when and as
the Repurchase Option expires, by filing an election under Section 83(b) (an
"83(b) Election") of the Code with the Internal Revenue Service within thirty
(30) days from the date of purchase. Even if the fair market value of the Stock
at the time of the execution of this Agreement equals the amount paid for the
Stock, the 83(b) Election must be made to avoid income under Section 83(a) in
the future. Purchaser understands that failure to file such an 83(b) Election in
a timely manner may result in adverse tax consequences for Purchaser. Purchaser
further understands that an additional copy of such 83(b) Election is required
to be filed with his or her federal income tax return for the calendar year in
which the date of this Agreement falls. Purchaser acknowledges that the
foregoing is only a summary of the effect of United States federal income
taxation with respect to purchase of the Stock hereunder, and does not purport
to be complete. Purchaser further acknowledges that the Company has directed
Purchaser to seek independent advice regarding the applicable provisions of the
Code, the income tax laws of any municipality, state or foreign country in which
Purchaser may reside, and the tax consequences of Purchaser's death. Purchaser
assumes all responsibility for filing an 83(b) Election and paying all taxes
resulting from such election or the lapse of the restrictions on the Stock.
13. REFUSAL TO TRANSFER. The Company shall not be required (a) to
transfer on its books any shares of Stock of the Company which shall have been
transferred in violation of any of the provisions set forth in this Agreement or
(b) 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.
14. NO EMPLOYMENT RIGHTS. This Agreement is not an employment contract
and nothing in this Agreement shall affect in any manner whatsoever the right or
power of the Company (or a parent or subsidiary of the Company) to terminate
Purchaser's employment for any reason at any time, with or without cause and
with or without notice.
15. MISCELLANEOUS.
(a) NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery or
sent by telegram or fax 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 his address hereinafter shown below its signature or at
such other address as such party may designate by ten (10) days' advance written
notice to the other party hereto.
(b) 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 Purchaser,
Purchaser's successors, and assigns. The Repurchase Option of the Company
hereunder shall be assignable by the Company at any time or from time to time,
in whole or in part.
(c) ATTORNEYS' FEES; SPECIFIC PERFORMANCE. Purchaser shall
reimburse the Company for all costs incurred by the Company in enforcing the
performance of, or protecting its
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rights under, any part of this Agreement, including reasonable costs of
investigation and attorneys' fees. It is the intention of the parties that the
Company, upon exercise of the Repurchase Option and payment of the Option Price,
pursuant to the terms of this Agreement, shall be entitled to receive the Stock,
in specie, in order to have such Stock available for future issuance without
dilution of the holdings of other shareholders. Furthermore, it is expressly
agreed between the parties that money damages are inadequate to compensate the
Company for the Stock and that the Company shall, upon proper exercise of the
Repurchase Option, be entitled to specific enforcement of its rights to purchase
and receive said Stock.
(d) GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware. The parties
agree that any action brought by either party to interpret or enforce any
provision of this Agreement shall be brought in, and each party agrees to, and
does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company's principal place of
business.
(e) FURTHER EXECUTION. The parties agree to take all such further
action(s) as may reasonably be necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary to
obtain any governmental approval in connection with or otherwise qualify the
issuance of the securities that are the subject of this Agreement.
(f) INDEPENDENT COUNSEL. Purchaser acknowledges that this
Agreement has been prepared on by the Company. Purchaser has been provided with
an opportunity to consult with Purchaser's own counsel with respect to this
Agreement.
(g) ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes and merges all prior agreements or understandings, whether
written or oral. This Agreement may not be amended, modified or revoked, in
whole or in part, except by an agreement in writing signed by each of the
parties hereto.
(h) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PACKETVIDEO CORPORATION
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx,
Chief Executive Officer
PURCHASER:
/s/ XXXXXXX XXXXXXXX
------------------------------------------
XXXXXXX XXXXXXXX
Address:
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ATTACHMENTS:
Exhibit A -- Vesting Schedule
Exhibit B -- Joint Escrow Instructions
Exhibit C -- Stock Assignment Separate from Certificate
Exhibit D -- Section 83(b) election
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EXHIBIT A
XXXXXXX XXXXXXXX VESTING SCHEDULE
VESTING COMMENCEMENT DATE: JANUARY 1, 2000
The following rules describe the relationship between the vesting of your shares
and the length of your service as an employee of the Company:
1. In the event your employment is terminated with "Cause" or you resign without
"Good Reason" the Company's repurchase right shall be as follows:
(A) Until December 31, 2000, all shares shall be subject to repurchase.
(B) On January 1, 2001 seventy five percent (75%) of your shares shall
be subject to repurchase.
(C) Upon the completion of each additional full month of employment
thereafter, an additional 2.0833% of your shares will cease to be subject to
repurchase.
2. In the event that your employment is terminated without "Cause" or if you
resign for "Good Reason" (other than in connection with a "Change in Control")
on or before December 31, 2000, then the Company's right of repurchase shall
lapse with respect to 50% of the Shares.
3. In the event that your employment is terminated without "Cause" or if you
resign for "Good Reason" (other than in connection with a "Change in Control")
on or after January 1, 2001, then, in addition to the Company's right of
repurchase which shall have lapsed as of such date in accordance with Section 1
above, the Company's right of repurchase shall lapse with respect to an
additional amount of the Shares equal to 50% of the number of shares subject to
the Company's right of repurchase immediately prior to the effective date of
such termination or resignation. By way of example only, if your employment with
the Company is terminated without "Cause" of if you resign for "Good Reason" on
March 1, 2001, then the Company's right of repurchase shall lapse with respect
to 64.583% of the shares. The remaining portion of your shares shall be subject
to repurchase in accordance with the terms of the Agreement.
4. Applying the above formulas, no shares will be subject to repurchase (and all
your shares will be fully vested) on the fourth anniversary of your Vesting
Commencement Date.
5. In the event of a "Change of Control" of the Company (as defined herein),
this option may be assigned by the Company to any successor of the Company (or
the successor's parent) in connection with such Change of Control and shall
continue to vest in accordance with the Company's standard schedule if you
become employed by such successor (or its parent or subsidiaries); provided,
however, that if you are terminated without "Cause" or if you resign for "Good
Reason" within sixty (60) days before or twelve (12) months after the effective
date of any such Change of Control, then the repurchase option shall lapse and
terminate fully and all shares shall be immediately vested as of the effective
date of such termination or resignation.
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SECTION 280G
In the event that the severance, acceleration of stock options and other
benefits provided for in this Agreement or otherwise payable to Purchaser (i)
constitute "parachute payments" within the meaning of Section 280G (as it may be
amended or replaced) of the Internal Revenue Code of 1986, as amended or
replaced (the "Code") and (ii) but for this paragraph, would be subject to the
excise tax imposed by Section 4999 (as it may be amended or replaced) of the
Code (the "Excise Tax"), then your benefits hereunder shall be either.
(i) delivered in full, or
(ii) delivered as to such lesser extent which would
result in no portion of such benefits being subject
to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the Excise Tax, results in the receipt by you
on an after-tax basis, of the greatest amount of benefits, notwithstanding that
all or some portion of such benefits may be taxable under the Excise Tax. Unless
the Company and you otherwise agree in writing, any determination required under
this paragraph shall be made in writing in good faith by the Company's
accountants. In the event of a reduction in benefits hereunder, you shall be
given the choice of which benefits to reduce. For purposes of making the
calculations required by this paragraph, the accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of the Code.
The Company and you shall furnish to the accountants such information and
documents as the accountants may reasonably request in order to make a
determination under this paragraph. The Company shall bear all costs the
accountants may reasonably incur in connection with any calculations
contemplated by this paragraph.
DEFINITION OF "CHANGE OF CONTROL"
"Change of Control" of the Company is defined as:
(a) Any "person" as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (other than a group of the members
of the Board of Directors as of the Effective Date and their affiliated
investment funds and partners thereof) becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 50% or more of the total voting power by the Company's
then outstanding voting securities after the Effective Date; or
(b) The consummation of a merger or consolidation of the Company with
any other. corporation other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 50% of the total voting
power represented by the voting securities of the surviving entity or its parent
outstanding immediately after such merger or consolidation; or
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(c) The approval by the Board of a plan of complete liquidation of the
Company or of an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
DEFINITIONS OF "CAUSE" AND "GOOD REASON"
"Cause" is defined as your (i) gross negligence or willful misconduct
in connection with the performance of your duties hereunder which has not been
cured within thirty (30) days following receipt by you of written notice
identifying such acts of gross negligence or willful misconduct, (ii) conviction
of a felony (other than a traffic-related offense) which has caused material
injury to the Company's business, (iii) dishonesty with respect to a significant
matter relating to the Company's business and intended to result in personal
enrichment of you or your family at the expense of the Company, or (iv) willful
material breach of the Proprietary Information Agreement by and between you and
the Company.
"Good Reason" is defined as (i) the assignment to you of duties not
commensurate with the position of Chief Executive Officer, or any material
reduction of your duties, authority or responsibilities or any material
reduction in your title or reporting responsibilities, relative to your duties,
authority, responsibilities, title or reporting responsibilities as in effect
immediately prior to such reduction; (ii) a reduction by the Company in your
base salary as in effect immediately prior to such reduction; (iii) your
relocation to a facility or a location outside of Orange County or San Diego
County; or (iv) any material breach of this Agreement by the Company. For
purposes of any determination regarding the existence of "Good Reason," any
claim by you that Good Reason exists shall be presumed to be correct, unless the
Company establishes to the Board in the Board's good faith judgment by a
preponderance of evidence that Good Reason does not exist.
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EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Common Stock Purchase
Agreement between the undersigned and PACKETVIDEO CORPORATION, a Delaware
corporation (the "Company"), dated as of November 24, 1999 (the
"Agreement"),__________ hereby sells, assigns and transfers unto the Company
_________ (_____) shares of common stock of the Company, standing in the
undersigned's name on the books 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. 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 Repurchase Option under the Agreement.
Dated:
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Signature
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Print Name
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EXHIBIT C
JOINT ESCROW INSTRUCTIONS
Xxxxxxxxx X. Xxxx
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Dear Sir:
As Escrow Agent for both PACKETVIDEO CORPORATION, a Delaware 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 Common Stock Purchase
Agreement ("Agreement"), dated November 24, 1998, to which a copy of these Joint
Escrow Instructions is attached as Exhibit C, in accordance with the following
instructions:
1. In the event the Corporation or an assignee shall elect to exercise
the Repurchase Option set forth in the Agreement, the Corporation or its
designee or 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 Repurchase 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 Repurchase Option, whichever occurs first.
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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.
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. 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.
12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
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13. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities, you are authorized and directed to retain in your possession without
liability to anyone all or any part of said securities until such dispute shall
have been settled either by mutual written agreement of the parties concerned or
by a final order, decree or judgment of a court of competent jurisdiction after
the time for appeal has expired and no appeal has been perfected, but you shall
be under no duty whatsoever to institute or defend any such proceedings.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery, including delivery
by express courier or five days after deposit in the United States Post Office,
by registered or certified mail with postage and fees prepaid, addressed to each
of the other parties hereunto entitled at the following addresses, or at such
other addresses as a party may designate by ten days' advance written notice to
each of the other parties hereto:
CORPORATION: PACKETVIDEO CORPORATION
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
PURCHASER: XXXXXXX XXXXXXXX
c/o PacketVideo Corporation
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
ESCROW AGENT: XXXXXXXXX X. XXXX
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
15. By signing these Joint Escrow Instructions you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
16. You shall be entitled to employ such legal counsel and other experts
(including without limitation the firm of Xxxxxx Godward LLP) as you may deem
necessary properly to advise you in connection with your obligations hereunder.
You may rely upon the advice of such counsel, and may pay such counsel
reasonable compensation therefor. The Corporation shall be responsible for all
fees generated by such legal counsel in connection with your obligations
hereunder.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. 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.
15
18. This Agreement shall be governed by and interpreted and determined
in accordance with the laws of the State of Delaware, as such laws are applied
by California courts to contracts made and to be performed entirely in
California by residents of that state.
Very truly yours,
PACKETVIDEO CORPORATION:
By
------------------------------------------
Xxxxx Xxxxx, Chief Executive Officer
PURCHASER:
--------------------------------------------
Xxxxxxx Xxxxxxxx
ESCROW AGENT:
-------------------------------------
Xxxxxxxxx X. Xxxx
16
November 24, 1998
Director of Internal Revenue
Internal Revenue Service Center
Xxxxxx, XX 00000
RE: ELECTION UNDER SECTION 83(b)
Gentlemen:
This statement constitutes an election pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended from time to time.
Pursuant to Treasury Regulation Section 1.83-2, the following information is
submitted:
1. NAME: Xxxxxxx Xxxxxxxx ("Purchaser")
ADDRESS: ------------------------------------
------------------------------------
SOCIAL SECURITY NO.: ------------------------------------
2. PROPERTY DESCRIPTION:600,000 shares of Common Stock of PacketVideo
Corporation (the "Company").
3. The date on which the property was transferred is November 24, 1999.
4. The taxable year for which the election is made is the calendar year 1999.
5. RESTRICTIONS:
If, on or before November 24, 2003, the employment or consulting relationship of
the Purchaser by the Company terminates for any reason, the Company shall have
the option to repurchase some or all of the property (depending on the date of
such termination) for a price equal to the cost of the property repurchased.
6. The fair market value of the property at the time of transfer with respect to
which this election is being made, determined without regard to any restrictions
other than a restriction which by its terms will never lapse is $150,000.
7. The amount paid by the undersigned taxpayer for the property is $150,000.
17
8. The undersigned taxpayer hereby elects to include in gross income for 1999
the amount of $0.00, which equals the amount by which the fair market value of
the property exceeds the amount paid for such property.
9. A copy of this statement has been furnished to the Company and the transferee
of the property if different from the purchaser.
Dated: November 24, 1998.
Very truly yours,
-----------------------------------
Xxxxxxx Xxxxxxxx
