EXHIBIT 10.15
FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT
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This Agreement is made and entered into as of July 21, 1994 (the "Effective
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Date") between InterMall, Inc. (the "Company"), a California corporation, and
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SOFTWARE PARTNERS, INC., a Delaware corporation ("Purchaser").
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1. PURCHASE OF SHARES. On the Effective Date and subject to the terms
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and conditions of this Agreement, Purchaser hereby purchases from the Company,
and Company hereby sells to Purchaser, an aggregate of 2,000,000 shares of the
Company's common stock (the "Shares") at an aggregate purchase price of
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$10,000.00 (the "Purchase Price") or $0.005 per Share (the "Purchase Price Per
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Share"). As used in this Agreement, the term "Shares" refers to the Shares
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purchased under this Agreement and includes all securities received (a) in
replacement of the Shares, (b) as a result of stock dividends or stock splits in
respect of the Shares, and (c) in replacement of the Shares in a
recapitalization, merger, reorganization or the like.
2. PAYMENT OF PURCHASE PRICE; CLOSING.
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(a) DELIVERIES BY PURCHASER. Purchaser hereby delivers to the Company
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the full Purchase Price by Purchaser's assignment to the Company of certain
technology and related rights owned by Purchaser (the "Assigned Technology") by
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delivery to the Company of an Assignment Agreement in the form of Exhibit 1,
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duly executed by Purchaser. Purchaser also hereby delivers to the Company two
(2) copies of a blank Stock Power and Assignment Separate from Stock Certificate
in the form of Exhibit 2 attached hereto (the "Stock Powers"), both executed by
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the Purchaser.
(b) DELIVERIES BY THE COMPANY. Upon its receipt of the entire
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Purchase Price and all the documents to be executed and delivered by Purchaser
to the Company under Section 2(a), the Company will issue a duly executed stock
certificate evidencing the Shares registered in Purchaser's name, with such
certificate to be placed in escrow as provided in Section 8 until expiration or
termination of both the Company's Repurchase Option and Right of First Refusal
described in Sections 5 and 6.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
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warrants to the Company that:
(a) PURCHASE FOR OWN ACCOUNT FOR INVESTMENT. Purchaser is purchasing
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the Shares for Purchaser's own account for investment purposes only, not as a
nominee or agent and not with a view to, or for sale in connection with, a
distribution of the Shares within the meaning of the Securities Act of 1933, as
amended (the "1933 Act"). Purchaser has no present intention of selling or
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otherwise disposing of all or any portion of the Shares and no one other than
Purchaser has any beneficial ownership of any of the Shares. Purchaser also
represents that Purchaser was not formed for the specific purpose of acquiring
the Shares.
(b) ACCESS TO INFORMATION. Purchaser has had access to all
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information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares, and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) UNDERSTANDING OF RISKS. Purchaser is a founder of the Company and
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is fully aware of: (i) the highly speculative nature of the investment in the
Shares; (ii) the financial hazards involved; (iii) the lack of liquidity of the
Shares and the restrictions on transferability of the Shares (e.g., that
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Purchaser may not be able to sell or dispose of the Shares or use them as
collateral for loans); (iv) the qualifications and backgrounds of the management
of the Company; and (v) the tax consequences of investment in the Shares.
(d) PURCHASER'S QUALIFICATIONS. Purchaser has a preexisting personal
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or business relationship with the Company and/or certain of its officers and/or
directors of a nature and duration sufficient to make Purchaser aware of the
character, business acumen and general business and financial circumstances of
the Company and/or such officers and directors. By reason of Purchaser's
business or financial experience, Purchaser is capable of evaluating the merits
and risks of this investment, has the ability to protect Purchaser's own
interests in this transaction and is financially capable of bearing a total loss
of this investment.
(e) NO GENERAL SOLICITATION. At no time was Purchaser presented with
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or solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Shares.
(f) COMPLIANCE WITH SECURITIES LAWS. Purchaser understands and
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acknowledges that, in reliance upon the representations and warranties made by
Purchaser herein, the Shares are not being registered with the Securities and
Exchange Commission ("SEC") under the 1933 Act or being qualified under the
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California Corporate Securities Law of 1968, as amended (the "Law"), but instead
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are being issued under an exemption or exemptions from the registration and
qualification requirements of the 1933 Act and the Law which impose certain
restrictions on Purchaser's ability to transfer the Shares.
(g) RESTRICTIONS ON TRANSFER. Purchaser understands that Purchaser
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may not transfer any Shares unless such Shares are registered under the 1933 Act
or qualified under the Law or unless, in the opinion of counsel to the Company,
exemptions from such registration and qualification requirements are available.
Purchaser understands that only the Company may file a registration statement
with the SEC or the California Commissioner of Corporations and that the Company
is under no obligation to do so with respect to the Shares. Purchaser has also
been advised that exemptions from registration and qualification may not be
available or may not permit Purchaser to transfer all or any of the Shares in
the amounts or at the times proposed by Purchaser.
(h) RULE 144. In addition, Purchaser has been advised that SEC Rule
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144 promulgated under the 1933 Act, which permits certain limited sales of
unregistered securities, is
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not presently available with respect to the Shares and, in any event, requires
that the Shares be held for a minimum of two years, and in certain cases three
years, after they have been purchased and paid for (within the meaning of Rule
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144), before they may be resold under Rule 144.
4. COMPLIANCE WITH CALIFORNIA SECURITIES LAWS. THE SALE OF THE
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SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT, IF NOT YET QUALIFIED WITH THE
CALIFORNIA COMMISSIONER OF CORPORATIONS AND NOT EXEMPT FROM SUCH QUALIFICATION,
IS SUBJECT TO SUCH QUALIFICATION, AND THE ISSUANCE OF SUCH SECURITIES, AND THE
RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS
UNLAWFUL UNLESS THE SALE IS EXEMPT. THE RIGHTS OF THE PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION
BEING AVAILABLE.
5. COMPANY'S REPURCHASE OPTION. The Company has the option to repurchase
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all or a portion of the Vested Shares (as defined below) on the terms and
conditions set forth in this Section (the "Repurchase Option") if Xxxx X.
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Xxxxxx, a principal shareholder of Purchaser ("Xxxxxx"), ceases to be employed
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by the Company (as defined herein) for any reason, or no reason, including
without limitation Xxxxxx'x death, disability, voluntary resignation or
termination by the Company with or without cause.
(A) DEFINITION OF "EMPLOYED BY THE COMPANY"; "TERMINATION DATE". For
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purposes of this Agreement, Xxxxxx will be considered to be "employed by the
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Company" if the Board of Directors of the Company determines that Xxxxxx is
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rendering substantial services as an officer, employee, consultant or
independent contractor to the Company or to any parent, subsidiary or affiliate
of the Company. In case of any dispute as to whether Xxxxxx is employed by the
Company, the Board of Directors of the Company will have discretion to determine
whether Xxxxxx has ceased to be employed by the Company or any parent,
subsidiary or affiliate of the Company and the effective date on which Xxxxxx'x
employment terminated (the "Termination Date").
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(b) UNVESTED AND VESTED SHARES. Shares that are not Vested Shares (as
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defined in this Section) are "Unvested Shares". On the Effective Date all of
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the Shares will be Unvested Shares. For so long (and only for so long) as
Xxxxxx remains continuously employed by the Company at all times after the
Effective Date, one forty-eighth (1/48) of the Shares (rounded to the nearest
whole share) will become Vested Shares upon the expiration of each full month
elapsed after the Effective Date. No Shares will become Vested Shares after the
Termination Date.
(c) ADJUSTMENTS. The number of Shares that are Vested Shares or
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Unvested Shares will be proportionally adjusted to reflect any stock dividend,
stock split, reverse stock split or recapitalization of the common stock of the
Company occurring after the Effective Date.
(d) EXERCISE OF REPURCHASE OPTION AT ORIGINAL PRICE. At any time
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within thirty (30) days after the Termination Date, the Company may elect to
repurchase any or all of
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the Unvested Shares by giving Purchaser written notice of exercise of the
Repurchase Option. The Company and/or its assignee(s) will then have the option
to repurchase from Purchaser (or from Purchaser's personal representative as the
case may be) any or all of the Unvested Shares at the Purchaser's original
Purchase Price Per Share (as adjusted to reflect any stock dividend, stock
split, reverse stock split or recapitalization of the common stock of the
Company occurring after the Effective Date).
(e) PAYMENT OF REPURCHASE PRICE. The repurchase price payable to
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purchase Unvested Shares upon exercise of the Repurchase Option will be payable,
at the option of the Company or its assignee(s), by check or by cancellation of
all or a portion of any outstanding indebtedness of Purchaser to the Company (or
to such assignee) or by any combination thereof. The repurchase price will be
paid without interest within thirty (30) days after the Termination Date.
(f) RIGHT OF TERMINATION UNAFFECTED. Nothing in this Agreement will
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be construed to limit or otherwise affect in any manner whatsoever the right or
power of the Company (or any parent, subsidiary or affiliate of the Company) to
terminate Xxxxxx'x employment at any time for any reason or no reason, with or
without cause.
(g) TERMINATION UPON CERTAIN CORPORATE TRANSACTIONS. In the event of
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(i) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transactions in which there is no substantial change in the shareholders
of the Company), (ii) a dissolution or liquidation of the Company, or (iii) the
sale of substantially all of the assets of the Company, the Company's Repurchase
Option shall immediately terminate.
(h) VESTING UPON INVOLUNTARY TERMINATION. In the event that the
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Company terminates the employment of Xxxxxx without cause (as defined below) and
without Xxxxxx'x consent, then on the Termination Date one quarter (1/4) of the
remaining Unvested Shares (rounded to the nearest whole share) shall immediately
become Vested Shares hereunder. For the purposes of this Section 5, "cause"
shall mean (i) Xxxxxx'x intentional misconduct which could reasonably be
expected to have a material adverse effect on the business and affairs of the
Company, (ii) Xxxxxx'x neglect of his duties or failure to act which could
reasonably be expected to have a material adverse effect on the business and
affairs of the Company, (iii) Xxxxxx'x commission of an act constituting common
law fraud, or a felony or criminal act, against the Company or any subsidiary or
affiliate thereof or (iv) Xxxxxx'x material breach of any of the agreements
contained herein.
6. RIGHT OF FIRST REFUSAL. Unvested Shares may not be sold or otherwise
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transferred by Purchaser without the Company's prior written consent. Before
any Vested Shares held by Purchaser or any transferee of such Shares (either
being sometimes referred to herein as the "Holder") may be sold or otherwise
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transferred (including without limitation a transfer by gift or operation of
law), the Company and/or its assignee(s) will have a right of first refusal to
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purchase the Shares to be sold or transferred (the "Offered Shares") on the
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terms and conditions set forth in this Section (the "Right of First Refusal").
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(a) NOTICE OF PROPOSED TRANSFER. The Holder of the Shares will
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deliver to the Company a written notice (the "Notice") stating: (i) the
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Holder's bona fide intention to sell or otherwise transfer the Offered Shares;
(ii) the name of each proposed purchaser or other transferee ("Proposed
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Transferee"); (iii) the number of Offered Shares to be transferred to each
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Proposed Transferee; (iv) the bona fide cash price or other consideration for
which the Holder proposes to transfer the Offered Shares (the "Offered Price");
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and (v) that the Holder will offer to sell the Offered Shares to the Company
and/or its assignee(s) at the Offered Price as provided in this Section.
(b) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within thirty
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(30) days after the date of the Notice, the Company and/or its assignee(s) may,
by giving written notice to the Holder, elect to purchase all (but not less than
all) of the Offered Shares proposed to be transferred to any one or more of the
Proposed Transferees named in the Notice, at the purchase price determined in
accordance with subsection (c) below.
(c) PURCHASE PRICE. The purchase price for the Offered Shares
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purchased under this Section will be the Offered Price. If the Offered Price
includes consideration other than cash, then the value of the non-cash
consideration as determined in good faith by the Company's Board of Directors
will conclusively be deemed to be the cash equivalent value of such non-cash
consideration.
(d) PAYMENT. Payment of the purchase price for Offered Shares will be
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payable, at the option of the Company and/or its assignee(s) (as applicable), by
check or by cancellation of all or a portion of any outstanding indebtedness of
the Holder to the Company (or to such assignee, in the case of a purchase of
Offered Shares by such assignee) or by any combination thereof. The purchase
price will be paid without interest within thirty (30) days after the Company's
receipt of the Notice, or, at the option of the Company and/or its assignee(s),
in the manner and at the time(s) set forth in the Notice.
(e) HOLDER'S RIGHT TO TRANSFER. If all of the Offered Shares proposed
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in the Notice to be transferred to a given Proposed Transferee are not purchased
by the Company and/or its assignee(s) as provided in this Section, then the
Holder may sell or otherwise transfer such Offered Shares to that Proposed
Transferee at the Offered Price or at a higher price, provided that such sale or
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other transfer is consummated within 120 days after the date of the Notice, and
provided further, that: (i) any such sale or other transfer is effected in
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compliance with all applicable securities laws; and (ii) the Proposed Transferee
agrees in writing that the provisions of this Section will continue to apply to
the Offered Shares in the hands of such Proposed Transferee. If the Offered
Shares described in the Notice are not transferred to the Proposed Transferee
within such 120 day period, then a new Notice must be given to the Company, and
the Company will again be offered the Right of First Refusal before any Shares
held by the Holder may be sold or otherwise transferred.
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(f) EXEMPT TRANSFERS. Notwithstanding anything to the contrary in
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this Section, the following transfers of Shares will be exempt from the Right of
First Refusal: (i) the transfer of any or all of the Shares to Purchaser's then-
current shareholders (each a "Purchaser Shareholder"); (ii) the transfer of any
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or all of the Shares by a Purchaser Shareholder during his or her lifetime by
gift or on his or her death by will or intestacy to such Purchaser Shareholder's
"immediate family" (as defined below) or to a trust for the benefit of such
Purchaser Shareholder or such Purchaser Shareholder's immediate family, provided
that each transferee or other recipient agrees in a writing satisfactory to the
Company that the provisions of this Section will continue to apply to the
transferred Shares in the hands of such transferee or other recipient; (ii) any
transfer of Shares made pursuant to a statutory merger or statutory
consolidation of the Company with or into another corporation or corporations
(except that the Right of First Refusal will continue to apply thereafter to
such Shares, in which case the surviving corporation of such merger or
consolidation shall succeed to the rights or the Company under this Section
unless the agreement of merger or consolidation expressly otherwise provides);
or (iii) any transfer of Shares pursuant to the winding up and dissolution of
the Company. As used herein, the term "immediate family" will mean a Purchaser
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Shareholder's spouse, lineal descendant or antecedent, father, mother, brother
or sister, adopted child or grandchild, or the spouse of any child, adopted
child, grandchild or adopted grandchild of such Purchaser Shareholder.
(g) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First Refusal
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will terminate as to all Shares on the effective date of the first sale of
common stock of the Company to the general public pursuant to a registration
statement filed with and declared effective by the SEC under the 1933 Act (other
than a registration statement relating solely to the issuance of common stock
pursuant to a business combination or an employee incentive or benefit plan).
(h) ENCUMBRANCES ON VESTED SHARES. Purchaser may xxxxx x xxxx or
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security interest in, or pledge, hypothecate or encumber Vested Shares only if
each party to whom such lien or security interest is granted, or to whom such
pledge, hypothecation or other encumbrance is made, agrees in a writing
satisfactory to the Company that: (i) such lien, security interest, pledge,
hypothecation or encumbrance will not apply to such Vested Shares after they are
acquired by the Company and/or its assignees) under this Section; and (ii) the
provisions of this Section will continue to apply to such Vested Shares in the
hands of such party and any transferee of such party. Purchaser may not xxxxx x
xxxx or security interest in, or pledge, hypothecate or encumber, any Unvested
Shares.
7. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
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Agreement, Purchaser will have all of the rights of a shareholder of the Company
with respect to the Shares from and after the date that Purchaser delivers
payment of the Purchase Price until such time as Purchaser disposes of the
Shares or the Company and/or its assignee(s) exercise(s) the Repurchase Option
or Right of First Refusal. Upon an exercise of the Repurchase Option or the
Right of First Refusal, Purchaser will have no further rights as a holder of the
Shares so purchased upon such exercise, except the right to receive payment for
the Shares so purchased in accordance with the provisions of this Agreement, and
Purchaser will promptly surrender the stock certificate(s) evidencing the Shares
so purchased to the Company for transfer or cancellation.
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8. ESCROW. As security for Purchaser's faithful performance of this
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Agreement, Purchaser agrees, immediately upon receipt of the stock
certificate(s) evidencing the Shares, to deliver such certificate(s), together
with the Stock Powers executed by Purchaser (with the date and number of Shares
left blank), to the Secretary of the Company or other designee of the Company
("Escrow Holder"), who is hereby appointed to hold such certificate(s) and Stock
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Powers in escrow and to take all such actions and to effectuate all such
transfers and/or releases of such Shares as are in accordance with the terms of
this Agreement. Purchaser and the Company agree that Escrow Holder will not be
liable to any party to this Agreement (or to any other party) for any actions or
omissions unless Escrow Holder is grossly negligent or intentionally fraudulent
in carrying out the duties of Escrow Holder under this Section. Escrow Holder
may rely upon any letter, notice or other document executed by any signature
purported to be genuine and may rely on the advice of counsel and obey any order
of any court with respect to the transactions contemplated by this Agreement.
The Shares will be released from escrow upon termination of the Repurchase
Option.
9. TAX CONSEQUENCES. Purchaser hereby acknowledges that Purchaser has
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been informed that, unless an election is filed by the Purchaser with the
Internal Revenue Service (and, if necessary, the proper state taxing
authorities), within 30 days of the purchase of the Shares, electing pursuant to
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Section 83(b) of the Internal Revenue Code (and similar state tax provisions, if
applicable) to be taxed currently on any difference between the Purchase Price
of the Shares and their fair market value on the date of purchase, there will be
a recognition of taxable income to the Purchaser, measured by the excess, if
any, of the fair market value of the Vested Shares, at the time they cease to be
Unvested Shares, over the purchase price for such Shares. Purchaser represents
that Purchaser has consulted any tax consultant(s) Purchaser deems advisable in
connection with Purchaser's purchase of the Shares and the filing of the
election under Section 83(b) and similar tax provisions. A form of Election
under Section 83(b) is attached hereto as Exhibit 3 for reference. PURCHASER
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HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING ANY TAXES
RESULTING FROM SUCH ELECTION OR FOR FAILING TO FILE THE ELECTION AND PAYING
TAXES RESULTING FROM THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE UNVESTED
SHARES.
10. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
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(a) LEGENDS. Purchaser understands and agrees that the Company will
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place the legends set forth below or similar legends on any stock certificate(s)
evidencing the Shares, together with any other legends that may be required by
state or federal securities laws, the Company's Articles of Incorporation or
Bylaws, any other agreement between Purchaser and the Company or any agreement
between Purchaser and any third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT
TO
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RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON PUBLIC RESALE, TRANSFER, AND RIGHT OF REPURCHASE
AND RIGHT OF FIRST REFUSAL OPTIONS HELD BY THE ISSUER AND/OR ITS
ASSIGNEE(S) AS SET FORTH IN A FOUNDER'S RESTRICTED STOCK PURCHASE
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE
SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE ISSUER. SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS AND THE
RIGHT OF REPURCHASE AND RIGHT OF FIRST REFUSAL ARE BINDING ON
TRANSFEREES OF THESE SHARES.
(b) STOP-TRANSFER INSTRUCTIONS. Purchaser agrees that, in order to
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ensure compliance with the restrictions imposed by this Agreement, the Company
may issue appropriate "stop-transfer" instructions to its transfer agent, if
any, and if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) REFUSAL TO TRANSFER. The Company will not be required (i) to
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transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares, or to accord the right to vote or pay dividends, to any
purchaser or other transferee to whom such Shares have been so transferred.
11. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with any
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registration of the Company's securities under the 1933 Act that, upon the
request of the Company or the underwriters managing any registered public
offering of the Company's securities, Purchaser will not sell or otherwise
dispose of any Shares without the prior written consent of the Company or such
managing underwriters, as the case may be, for a period of time (not to exceed
180 days) after the effective date of such registration requested by such
managing underwriters and subject to all restrictions as the Company or the
managing underwriters may specify for employee-shareholders generally.
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12. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
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the Shares will be subject to and conditioned upon compliance by the Company and
Purchaser with all applicable state and federal laws and regulations and with
all applicable requirements of any stock exchange or automated quotation system
on which the Company's common stock may be listed or quoted at the time of such
issuance or transfer.
13. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
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under this Agreement, including its rights to repurchase Shares under the
Repurchase Option and the Right of First Refusal. This Agreement will be binding
upon and inure to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this Agreement will be
binding upon Purchaser and Purchaser's administrators, successors and assigns.
14. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
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construed in accordance with the internal laws of the State of California,
excluding that body of laws pertaining to conflict of laws. If any provision of
this Agreement is determined by a court of law to be illegal or unenforceable,
then such provision will be enforced to the maximum extent possible and the
other provisions will remain fully effective and enforceable.
15. NOTICES. Any notice required or permitted hereunder will be given in
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writing and will be deemed effectively given upon personal delivery, three (3)
days after deposit in the United States mail by certified or registered mail
(return receipt requested), one (1) business day after its deposit with any
return receipt express courier (prepaid), or one (1) business day after
transmission by telecopier, addressed to the other party at its address (or
facsimile number, in the case of transmission by telecopier) as shown below its
signature to this Agreement, or to such other address as such party may
designate in writing from time to time to the other party.
16. FURTHER INSTRUMENTS. The parties agree to execute such further
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instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
17. HEADINGS. The captions and headings of this Agreement are included
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for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of
this Agreement.
18. ENTIRE AGREEMENT. This Agreement, together with all its Exhibits,
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constitutes the entire agreement and understanding of the parties with respect
to the subject matter of this Agreement, and supersedes all prior understandings
and agreements, whether oral or written, between the parties hereto with respect
to the specific subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in
duplicate by its duly authorized representative and Purchaser has executed this
Agreement in duplicate, as of the Effective Date.
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COMPANY PURCHASER
By: /s/ S. Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
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Name: S. XXXXXXX XXXXXX Name: XXXX X. XXXXXX
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Title: PRESIDENT Title: PRESIDENT
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Address: Address: 0000 XXXXXXXX XXXXX
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XXXXXXXX XXXX, XX 00000
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Fax: (___) Fax: (000) 000-0000
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LIST OF EXHIBITS
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Exhibit 1: Assignment Agreement
Exhibit 2: Stock Power and Assignment Separate From Certificate
Exhibit 3: Election Under Section 83(b) of the Internal Revenue Code
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EXHIBIT 2
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STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Founder's Restricted Stock
Purchase Agreement dated as of July 21, 1994 (the "Agreement"), the undersigned
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hereby sells, assigns and transfers unto ________ , ______ shares of the
common stock InterMall, Inc., a California corporation (the "Company"), standing
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in the undersigned's name on the books of the Company represented by Certificate
No(s).____ delivered herewith, and does hereby irrevocably constitute and
appoint the Secretary of the Company as the undersigned's attorney-in-fact, with
full power of substitution, to transfer said stock on the books of the Company.
THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND THE EXHIBITS
THERETO.
Dated: ________ , 199__
SOFTWARE PARTNERS, INC.
By: /s/ Xxxx X.Xxxxxx
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Name: XXXX X. XXXXXX
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Title: PRESIDENT
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INSTRUCTION: Please do not fill in any blanks other than the signature line.
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The purpose of this Stock Power and Assignment is to enable the Company and/or
its assignee(s) to acquire the shares upon exercise of its "Repurchase Option"
and/or its "Right of First Refusal" as set forth in the Agreement without
requiring additional signatures on the part of the Purchaser.
EXHIBIT 3
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ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
1. TAXPAYER'S NAME: XXXX X. XXXXXX
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TAXPAYER'S ADDRESS: 0000 XXXXXXXX XXXXX
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XXXXXXXX XXXX, XX 00000
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SOCIAL SECURITY NUMBER:
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2. The property with respect to which the election is made is described as
follows: 2,000,000 shares of Common Stock of InterMall, Inc., a California
corporation (the "Company"), which is Taxpayer's employer or the corporation
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for whom the Taxpayer performs services.
3. The date on which the shares were transferred was July 21, 1994 and this
election is made for calendar year 1994 .
4. The shares are subject to the following restrictions: The Company may
repurchase all or a portion of the shares at the Taxpayer's original
purchase price under certain conditions at the time of Taxpayer's
termination of employment or services.
5. The fair market value of the shares (without regard to restrictions other
than restrictions which by their terms will never lapse) was $0.005 per
share at the time of transfer.
6. The amount paid for such shares was $0.005 per share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS"), AT THE
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OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER
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THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE TAXPAYER'S
INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED
WITHOUT THE CONSENT OF THE IRS.
Dated: August 16, 1994
/s/ Xxxx Xxxxxx
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Taxpayer's Signature
