Exhibit 10.15
XXXXXXXXX.XXX INCORPORATED
EARLY EXERCISE STOCK PURCHASE AGREEMENT
UNDER THE 1996 STOCK OPTION PLAN
THIS AGREEMENT is made this 1st day of January, 2000 by and between
XXXXXXXXX.XXX INCORPORATED, a Delaware corporation (the "Company"), and
XXXXXXXXX XXXX ("Purchaser").
WITNESSETH:
WHEREAS, Purchaser holds a stock option to purchase shares up to 750,000
shares of common stock ("Common Stock") of the Company at a purchase price of
$0.75 per share (the "Option") pursuant to the Company's 1996 Stock Option
Plan (the "Plan"); and
WHEREAS, Purchaser wishes to take advantage of the early exercise
provision of the Option and desires to exercise the Option on the terms and
conditions contained herein.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. INCORPORATION OF PLAN AND OPTION BY REFERENCE. This Agreement is
subject to all of the terms and conditions as set forth in the Plan and the
Option. If there is a conflict between the terms of this Agreement and/or the
Option and the terms of the Plan, the terms of the Plan shall control. If
there is a conflict between the terms of this Agreement and the terms of the
Option, the terms of the Option shall control. Defined terms not explicitly
defined in this Agreement but defined in the Plan shall have the same
definitions as in the Plan.
2. PURCHASE AND SALE OF COMMON STOCK.
(a) AGREEMENT TO PURCHASE AND SELL COMMON STOCK. Purchaser hereby
agrees to purchase from the Company, and the Company hereby agrees to sell to
Purchaser, an aggregate of seven hundred fifty thousand (750,000) shares of
Common Stock at $0.75 per share (the "Exercise Price"), for an aggregate
purchase price of $562,500.00, payable as follows:
Cash .....................................................................$7,500.00
Promissory Note in the form set forth in EXHIBIT C, subject to
a Pledge Agreement in the form set forth in EXHIBIT D...................$555,000.00
Total Exercise Price....................................................$562,500.00
In accordance with the terms of the Option, the purchase price for the
shares of Common Stock is payable by a Promissory Note substantially in the
form set forth in EXHIBIT C, subject to a Pledge Agreement substantially in
the form set forth in EXHIBIT D.
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(b) CLOSING. The closing hereunder, including payment for and
delivery of the Common 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.
3. REPURCHASE OPTION
(a) REPURCHASE OPTION. In the event Purchaser's Continuous
Service terminates, then the Company shall have an irrevocable option (the
"Repurchase Option") for a period of ninety (90) days after said termination
(or in the case of shares issued upon exercise of the Option after such date
of termination, within ninety (90) days after the date of the exercise), or
such longer period as may be agreed to by the Company and the Purchaser, to
repurchase from Purchaser or Purchaser's personal representative, as the case
may be, those shares that Purchaser received pursuant to the exercise of the
Option that have not as yet vested as of such termination date (the "Unvested
Shares") in accordance with the provisions of Section 3(b) below
(b) VESTING SCHEDULE.
(i) One hundred percent (100%) of the Option Shares shall
initially be subject to the Repurchase Option. On the date one (1) year from
the Vesting Commencement Date (the "Vesting Anniversary Date") twenty-five
percent (25%) of the Option Shares (187,500 shares) (the "First Year Shares")
subject to the Repurchase Option shall vest and be released from the
Repurchase Option. Thereafter, 1/48th of the Option Shares (15,625 shares)
shall vest and be released from the Repurchase Option on a monthly basis
measured from the Vesting Anniversary Date, until all the Option Shares are
released from the Repurchase Option (provided in each case that Purchaser's
relationship as an employee, director or consultant of the Company (or a
parent or subsidiary of the Company) has not been terminated prior to the
date of such release).
(ii) Notwithstanding the foregoing Section 3(b)(i), if during
the first year of Purchaser's employment with the Company, there is (A) a
Corporate Transaction (defined below) in connection with or after which
Purchaser is involuntarily terminated or Purchaser's role within the
surviving company is substantially and materially altered against Purchaser's
will, then the Repurchase Option shall be released for the number of shares
equal to the product of the First Year Shares times the fraction of the first
year for which Purchaser had been employed by the Company. For example, if
Purchaser had been employed for seven months, then 7/12th of the First Year
Shares would be released from the Repurchase Option (7/12 * 187,500 =
109,375).
(iii) A "Corporation Transaction" shall mean (A) a sale of
substantially all of the assets of the Company; (B) a merger or consolidation
in which the Company is not the surviving corporation (other than a merger or
consolidation in which shareholders immediately before the merger or
consolidation have, immediately after the merger or consolidation, greater
stock voting power); (C) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock
outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise (other than a reverse merger in which shareholders immediately
before the merger
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have, immediately after the merger, greater stock voting power); or (D) any
transaction or series of related transactions in which in excess of 50% of
the Company's voting power is transferred.
(c) SHARES REPURCHASABLE AT PURCHASER'S ORIGINAL EXERCISE PRICE.
The Company may repurchase all or any of the Unvested Shares at a price
("Option Price") equal to the Purchaser's Exercise Price for such shares.
4. EXERCISE OF REPURCHASE OPTION. The Repurchase Option shall be
exercised by written notice signed by an Officer of the Company and delivered
or mailed as provided herein. Such notice shall identify the number of shares
of Common 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 Repurchase Option set forth above. The Company
shall be entitled to pay for any shares of Common 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 Common 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 Common 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 Common Stock being repurchased by the Company,
without further action by Purchaser.
5. CAPITALIZATION ADJUSTMENTS TO COMMON STOCK. In the event of a
"Adjustment Upon Changes in Stock" affecting the Company's outstanding Common
Stock as a class as designated in Section 10 of the Plan, then any and all
new, substituted or additional securities or other property to which
Purchaser is entitled by reason of Purchaser's ownership of Common Stock
shall be immediately subject to the Repurchase Option and be included in the
word "Common Stock" for all purposes of the Repurchase Option with the same
force and effect as the shares of the Common Stock presently subject to the
Repurchase Option, but only to the extent the Common 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 Common Stock
upon exercise of the Repurchase Option shall be appropriately adjusted.
6. CHANGE IN CONTROL. In the event of a Corporate Transaction, then the
Repurchase Option may be assigned by the Company to the successor of the
Company (or such successor's parent company), if any, in connection with such
Corporate Transaction. To the extent the Repurchase Option remains in effect
following such Corporate Transaction, it shall apply to the new capital stock
or other property received in exchange for the Common Stock in consummation
of the Corporate Transaction, but only to the extent the Common Stock was at
the time covered by such right. Appropriate adjustments shall be made to the
price per share payable upon exercise of the Repurchase Option to reflect the
Corporate Transaction upon the Company's capital structure; PROVIDED,
HOWEVER, that the aggregate Option Price shall remain the same.
7. ESCROW OF UNVESTED COMMON STOCK. As security for Purchaser's
faithful performance of the terms of this Agreement and to insure the
availability for delivery of Purchaser's Common Stock upon exercise of the
Repurchase Option herein provided for,
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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
A, together with a certificate or certificates evidencing all of the Common
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.
8. RIGHTS OF PURCHASER. Subject to the provisions of the Option,
Purchaser shall exercise all rights and privileges of a stockholder of the
Company with respect to the shares deposited in escrow. Purchaser shall be
deemed to be the holder of the shares for purposes of receiving any dividends
that may be paid with respect to such shares and for purposes of exercising
any voting rights relating to such shares, even if some or all of such shares
have not yet vested and been released from the Company's Repurchase Option.
9. LIMITATIONS ON TRANSFER. In addition to any other limitation on
transfer created by applicable securities laws, Purchaser shall not sell,
assign, hypothecate, donate, encumber or otherwise dispose of any interest in
the Option Shares while the Option Shares are subject to the Repurchase
Option. After any Option Shares have been released from the Repurchase
Option, Purchaser shall not sell, assign, hypothecate, donate, encumber or
otherwise dispose of any interest in the Option Shares except in compliance
with the provisions herein and applicable securities laws. Furthermore, the
Option Shares 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.
10. RESTRICTIVE LEGENDS. All certificates representing the Option Shares
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."
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(c) Any legend required by appropriate blue sky officials.
11. INVESTMENT REPRESENTATIONS. In connection with the purchase of the
Common 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 Common Stock.
Purchaser is acquiring the Common 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 Securities Act.
(b) Purchaser understands that the Common Stock has not been
registered under the Securities 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.
(c) Purchaser further acknowledges and understands that the Common
Stock must be held indefinitely unless the Common Stock is subsequently
registered under the Securities Act or an exemption from such registration is
available. Purchaser further acknowledges and understands that the Company is
under no obligation to register the Common Stock. Purchaser understands that
the certificate evidencing the Common Stock will be imprinted with a legend
that prohibits the transfer of the Common Stock unless the Common Stock is
registered or such registration is not required in the opinion of counsel for
the Company.
(d) Purchaser is familiar with the provisions of Rules 144 and 701,
under the Securities 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. Rule 701 provides that if the issuer qualifies under Rule 701 at
the time of issuance of the securities, such issuance will be exempt from
registration under the Securities Act. In the event the Company becomes
subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the securities exempt under Rule 701 may be
sold by Purchaser ninety (90) days thereafter, subject to the satisfaction of
certain of the conditions specified by Rule 144 and the market stand-off
provision described in Section 12 below.
(e) In the event that the sale of the Common Stock does not qualify
under Rule 701 at the time of purchase, then the Common 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.
(f) Purchaser further understands that at the time Purchaser wishes
to sell the Common 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 or 701, and that, in such event, Purchaser would be
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precluded from selling the Common Stock under Rule 144 or 701 even if the
minimum holding period requirement had been satisfied.
12. MARKET STAND-OFF AGREEMENT. By exercising the Option Purchaser
agrees that the Company (or a representative of the underwriters) may, in
connection with any underwritten registration of the offering of any
securities of the Company under the Securities Act, require that the
Purchaser 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 shares of Common Stock or other
securities of the Company held by Purchaser, for a period of time specified
by the underwriter(s) (not to exceed one hundred eighty (180) days) following
the effective date of the registration statement of the Company filed under
the Securities Act. Purchaser further agrees to execute and deliver such
other agreements as may be reasonably requested by the Company and/or the
underwriter(s) that are consistent with the foregoing or that 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
Common Stock until the end of such period.
13. 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 Common Stock and the fair market value of the Common Stock as of the date
any restrictions on the Common Stock lapse. In this context, "restriction"
includes the right of the Company to buy back the Common Stock pursuant to
the Repurchase Option set forth above. Purchaser understands that Purchaser
may elect to be taxed at the time the Common 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 Common Stock at the time of the execution of this
Agreement equals the amount paid for the Common 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 Purchaser must file an additional copy of such 83(b)
Election 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 Common 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 Common Stock.
14. REFUSAL TO TRANSFER. The Company shall not be required (a) to
transfer on its books any shares of Common 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.
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15. 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.
16. 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 such party's 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 Company may assign the Repurchase
Option hereunder 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 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 Common Stock, in specie, in order
to have such Common Stock available for future issuance without dilution of
the holdings of other stockholders. Furthermore, it is expressly agreed
between the parties that money damages are inadequate to compensate the
Company for the Common 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 Common Stock.
(d) GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. 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 behalf of the Company by Xxxxxx Godward LLP, counsel to
the Company and
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that Xxxxxx Godward LLP does not represent, and is not acting on behalf of,
Purchaser. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
XXXXXXXXX.XXX INCORPORATED
By: /s/ XXXXXX X. XXXXX
-----------------------------------
XXXXXX X. XXXXX
Title: President and CEO
Address: 0000X Xxxxxx Xxx
Xxxxx Xxxx, XX 00000
/s/ XXXXXXXXX XXXX
-----------------------------------
XXXXXXXXX XXXX
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
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ATTACHMENTS:
Exhibit A Stock Assignment Separate from Certificate
Exhibit B Joint Escrow Instructions
Exhibit C Promissory Note
Exhibit D Pledge Agreement
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EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Xxxxxxxxx Xxxx hereby sells, assigns and transfers
unto XXXXXXXXX.XXX INCORPORATED, a Delaware corporation (the "Company"),
pursuant to the Repurchase Option under that certain Early Exercise Stock
Purchase Agreement, dated _______________ by and between the undersigned and the
Company (the "Agreement"), _______________ (_______________) shares of Common
Stock of the Company standing in the undersigned's name on the books of the
Company represented by Certificate No(s). _______________ and does hereby
irrevocably constitute and appoint the Company's Secretary, Assistant Secretary
or attorney to transfer said Common 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: _______________
/s/ Xxxxxxxxx Xxxx
-----------------------------------
(Signature)
Xxxxxxxxx Xxxx
-----------------------------------
(Print Name)
(INSTRUCTION: Please do not fill in any blanks other than the "Signature" line
and the "Print Name" line.)
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
JOINT ESCROW INSTRUCTIONS
Xxxxx X. Xxxxx, Assistant Secretary
Xxxxxxxxx.xxx Incorporated
c/o Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Dear Xx. Xxxxx:
As Escrow Agent for both XXXXXXXXX.XXX INCORPORATED, a Delaware
corporation ("Company"), and the undersigned purchaser of Common Stock of the
Company ("Purchaser"), you are hereby authorized and directed to hold the
documents delivered to you pursuant to the terms of that certain Early Exercise
Stock Purchase Agreement ("Agreement"), dated January 1, 2000 to which a copy of
these Joint Escrow Instructions is attached as EXHIBIT B, in accordance with the
following instructions:
1. In the event the Company or an assignee shall elect to exercise
the Repurchase Option set forth in the Agreement, the Company or its assignee
will give to Purchaser and you a written notice specifying the number of
shares of Common Stock to be purchased, the purchase price, and the time for
a closing hereunder at the principal office of the Company. Purchaser and the
Company 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 Common Stock to be transferred, to the
Company 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 Common Stock being purchased pursuant to the exercise of
the Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with
you any certificates evidencing shares of Common 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 the Purchaser's 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.
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
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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 Company 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 Company.
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 Company or if you shall resign by
written notice to each party. In the event of any such termination, the
Company may appoint any officer or assistant officer of the Company as
successor Escrow Agent and Purchaser hereby confirms the appointment of such
successor or successors as the Purchaser's 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.
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
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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:
COMPANY: Xxxxxxxxx.xxx Incorporated
0000X Xxxxxx Xxx
Xxxxx Xxxx, XX 00000
Attention: Chief Executive Officer
PURCHASER: Xxxxxxxxx Xxxx
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
ESCROW AGENT: Xxxxx X. Xxxxx, Assistant Secretary
Xxxxxxxxx.xxx Incorporated
c/o Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
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 Company 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 Company 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.
-3-
18. This Agreement shall be governed by and interpreted and
determined in accordance with the laws of the State of California, 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,
XXXXXXXXX.XXX INCORPORATED
By: /s/ XXXXXX X. XXXXX
--------------------------------
XXXXXX X. XXXXX
Title: President and CEO
PURCHASER:
/s/ Xxxxxxxxx Xxxx
------------------------------------
XXXXXXXXX XXXX
ESCROW AGENT:
/s/ XXXXX X. XXXXX
--------------------------------
XXXXX X. XXXXX
-4-
EXHIBIT C
PROMISSORY NOTE
PROMISSORY NOTE
$555,000 Menlo Park, California
January 1, 2000
FOR VALUE RECEIVED, the undersigned hereby unconditionally promises
to pay to the order of XXXXXXXXX.XXX INCORPORATED, a Delaware corporation
(the "Company"), at 0000X Xxxxxx Xxx, Xxxxx Xxxx, XX 00000, or at such other
place as the holder hereof may designate in writing, in lawful money of the
United States of America and in immediately available funds, the principal
sum of FIVE HUNDRED FIFTY FIVE THOUSAND DOLLARS ($555,000) together with
interest accrued from the date hereof on the unpaid principal at the minimum
rate allowable to avoid the imputation of interest (currently 6.21%), as
follows:
PRINCIPAL REPAYMENT AND INTEREST PAYMENTS. The outstanding principal
amount hereunder shall be due and payable in full on January 1, 2005
("Principal Repayment Date") and interest shall be compounded annually and
shall be payable in arrears on the Principal Repayment Date and shall be
calculated on the basis of a 360-day year for the actual number of days
elapsed; PROVIDED, HOWEVER, that in the event that the undersigned's
employment by or association with the Company or its Affiliate is terminated
for any reason prior to payment in full of this Note, this Note shall be
accelerated and all remaining unpaid principal and interest shall become due
and payable ninety (90) days after such termination.
This Note may be prepaid at any time without penalty. All money paid
toward the satisfaction of this Note shall be applied first to the payment of
interest as required hereunder and then to the retirement of the principal.
The full amount of this Note is secured by a pledge of shares of
Common Stock of the Company, and is subject to all of the terms and
provisions of the Early Exercise Stock Purchase Agreement and Stock Pledge
Agreement of even date herewith between the undersigned and the Company.
The undersigned hereby represents and agrees that the amounts due
under this Note are not consumer debt, and are not incurred primarily for
personal, family or household purposes, but are for business and commercial
purposes only.
The undersigned hereby waives presentment, protest and notice of
protest, demand for payment, notice of dishonor and all other notices or
demands in connection with the delivery, acceptance, performance, default or
endorsement of this Note.
The holder hereof shall be entitled to recover, and the undersigned
agrees to pay when incurred, all costs and expenses of collection of this
Note, including without limitation, reasonable attorneys' fees.
-1-
This Note shall be governed by, and construed, enforced and
interpreted in accordance with, the laws of the State of California,
excluding conflict of laws principles that would cause the application of
laws of any other jurisdiction.
Signed /s/ XXXXXXXXX XXXX
-------------------
XXXXXXXXX XXXX
-2-
EXHIBIT D
PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Pledge Agreement") is made this 1st
day of January by XXXXXXXXX XXXX ("Pledgor"), in favor of XXXXXXXXX.XXX
INCORPORATED, a Delaware corporation ("Pledgee") with its principal place of
business at 0000X Xxxxxx Xxx, Xxxxx Xxxx, XX 00000.
WHEREAS, Pledgor has concurrently herewith executed that certain
Promissory Note (the "Note") in favor of Pledgee in the amount of Five
Hundred Fifty Five Thousand Dollars ($555,000) in partial payment of the
purchase price of 750,000 shares of the Common Stock of Pledgee; and
WHEREAS, Pledgee is willing to accept the Note from Pledgor, but
only upon the condition, among others, that Pledgor shall have executed and
delivered to Pledgee this Pledge Agreement and the Collateral (as defined
below):
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Pledgor hereby agrees
as follows:
1. As security for the full, prompt and complete payment and
performance when due (whether by stated maturity, by acceleration or
otherwise) of all indebtedness of Pledgor to Pledgee created under the Note
(all such indebtedness being the "Liabilities"), together with, without
limitation, the prompt payment of all expenses, including, without
limitation, reasonable attorneys' fees and legal expenses, incidental to the
collection of the Liabilities and the enforcement or protection of Pledgee's
lien in and to the collateral pledged hereunder, Pledgor hereby pledges to
Pledgee, and grants to Pledgee, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) Seven Hundred Fifty Thousand (750,000) shares of Common Stock
of Pledgee represented by Certificate(s) numbered C-156 (the "Pledged
Shares"), and all dividends, cash, instruments, and other property or
proceeds from time to time received, receivable, or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(b) all voting trust certificates held by Pledgor evidencing the
right to vote any Pledged Shares subject to any voting trust; and
(c) all additional shares and voting trust certificates from time
to time acquired by Pledgor in any manner (which additional shares shall be
deemed to be part of the Pledged Shares), and the certificates representing
such additional shares, and all dividends, cash, instruments, and other
property or proceeds from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any or all of such shares.
The term "indebtedness" is used herein in its most comprehensive
sense and includes any and all advances, debts, obligations and Liabilities
heretofore, now or hereafter made, incurred or
1.
created, whether voluntary or involuntary and whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether recovery upon such indebtedness may be or hereafter
becomes unenforceable.
2. At any time, without notice, and at the expense of Pledgor,
Pledgee in its name or in the name of its nominee or of Pledgor may, but
shall not be obligated to: (1) collect by legal proceedings or otherwise all
dividends (except cash dividends other than liquidating dividends), interest,
principal payments and other sums now or hereafter payable upon or on account
of said Pledged Collateral; (2) enter into any extension, reorganization,
deposit, merger or consolidation agreement, or any agreement in any wise
relating to or affecting the Pledged Collateral, and in connection therewith
may deposit or surrender control of such Pledged Collateral thereunder,
accept other property in exchange for such Pledged Collateral and do and
perform such acts and things as it may deem proper, and any money or property
received in exchange for such Pledged Collateral shall be applied to the
indebtedness or thereafter held by it pursuant to the provisions hereof; (3)
insure, process and preserve the Pledged Collateral; (4) cause the Pledged
Collateral to be transferred to its name or to the name of its nominee; (5)
exercise as to such Pledged Collateral all the rights, powers and remedies of
an owner, except that so long as no default exists under the Note or
hereunder Pledgor shall retain all voting rights as to the Pledged Shares.
3. Pledgor agrees to pay prior to delinquency all taxes, charges,
liens and assessments against the Pledged Collateral, and upon the failure of
Pledgor to do so, Pledgee at its option may pay any of them and shall be the
sole judge of the legality or validity thereof and the amount necessary to
discharge the same.
4. At the option of Pledgee and without necessity of demand or
notice, all or any part of the indebtedness of Pledgor shall immediately
become due and payable irrespective of any agreed maturity, upon the
happening of any of the following events: (1) failure to keep or perform any
of the terms or provisions of this Pledge Agreement; (2) failure to pay any
installment of principal or interest on the Note when due; (3) the levy of
any attachment, execution or other process against the Pledged Collateral; or
(4) the insolvency, commission of an act of bankruptcy, general assignment
for the benefit of creditors, filing of any petition in bankruptcy or for
relief under the provisions of Title 11 of the United States Code of, by, or
against Pledgor.
5. In the event of the nonpayment of any indebtedness when due,
whether by acceleration or otherwise, or upon the happening of any of the
events specified in the last preceding section, Pledgee may then, or at any
time thereafter, at its election, apply, set off, collect or sell in one or
more sales, or take such steps as may be necessary to liquidate and reduce to
cash in the hands of Pledgee in whole or in part, with or without any
previous demands or demand of performance or notice or advertisement, the
whole or any part of the Pledged Collateral in such order as Pledgee may
elect, and any such sale may be made either at public or private sale at its
place of business or elsewhere, or at any broker's board or securities
exchange, either for cash or upon credit or for future delivery; provided,
however, that if such disposition is at private sale, then the purchase price
of the Pledged Collateral shall be equal to the public market price then in
effect, or, if at the time of sale no public market for the Pledged
Collateral
2.
exists, then, in recognition of the fact that the sale of the Pledged
Collateral would have to be registered under the Securities Act of 1933 and
that the expenses of such registration are commercially unreasonable for the
type and amount of collateral pledged hereunder, Pledgee and Pledgor hereby
agree that such private sale shall be at a purchase price mutually agreed to
by Pledgee and Pledgor or, if the parties cannot agree upon a purchase price,
then at a purchase price established by a majority of three independent
appraisers knowledgeable of the value of such collateral, one named by
Pledgor within ten (10) days after written request by the Pledgee to do so,
one named by Pledgee within such 10-day period, and the third named by the
two appraisers so selected, with the appraisal to be rendered by such body
within thirty (30) days of the appointment of the third appraiser. The cost
of such appraisal, including all appraiser's fees, shall be charged against
the proceeds of sale as an expense of such sale. Pledgee may be the purchaser
of any or all Pledged Collateral so sold and hold the same thereafter in its
own right free from any claim of Pledgor or right of redemption. Demands of
performance, notices of sale, advertisements and presence of property at sale
are hereby waived, and Pledgee is hereby authorized to sell hereunder any
evidence of debt pledged to it. Any officer or agent of Pledgee may conduct
any sale hereunder.
6. The proceeds of the sale of any of the Pledged Collateral and
all sums received or collected by Pledgee from or on account of such Pledged
Collateral shall be applied by Pledgee to the payment of expenses incurred or
paid by Pledgee in connection with any sale, transfer or delivery of the
Pledged Collateral, to the payment of any other costs, charges, attorneys'
fees or expenses mentioned herein, and to the payment of the indebtedness or
any part hereof, all in such order and manner as Pledgee in its discretion
may determine. Pledgee shall then pay any balance to Pledgor.
7. Upon the transfer of all or any part of the indebtedness Pledgee
may transfer all or any part of the Pledged Collateral and shall be fully
discharged thereafter from all liability and responsibility with respect to
such Pledged Collateral so transferred, and the transferee shall be vested
with all the rights and powers of Pledgee hereunder with respect to such
Pledged Collateral so transferred; but with respect to any Pledged Collateral
not so transferred Pledgee shall retain all rights and powers hereby given.
8. Until all indebtedness shall have been paid in full the power of
sale and all other rights, powers and remedies granted to Pledgee hereunder
shall continue to exist and may be exercised by Pledgee at any time and from
time to time irrespective of the fact that the indebtedness or any part
thereof may have become barred by any statute of limitations, or that the
personal liability of Pledgor may have ceased.
9. Pledgee agrees that so long as no default exists under the Note
or hereunder, the Pledged Shares shall, upon the request of Pledgor, be
released from pledge as the indebtedness is paid. Such releases shall be at
the rate of one share for each Seventy-five Cents ($0.75) of principal amount
of indebtedness paid. Release from pledge, however, shall not result in
release from the provisions of those certain Joint Escrow Instructions, if
any, of even date herewith among the parties to this Pledge Agreement and the
Escrow Agent named therein.
3.
10. Pledgee may at any time deliver the Pledged Collateral or any
part thereof to Pledgor and the receipt of Pledgor shall be a complete and
full acquittance for the Pledged Collateral so delivered, and Pledgee shall
thereafter be discharged from any liability or responsibility therefor.
11. The rights, powers and remedies given to Pledgee by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to
Pledgee by virtue of any statute or rule of law. Any forbearance or failure
or delay by Pledgee in exercising any right, power or remedy hereunder shall
not be deemed to be a waiver of such right, power or remedy, and any single
or partial exercise of any right, power or remedy hereunder shall not
preclude the further exercise thereof; and every right, power and remedy of
Pledgee shall continue in full force and effect until such right, power or
remedy is specifically waived by an instrument in writing executed by Pledgee.
12. If any provision of this Pledge Agreement is held to be
unenforceable for any reason, it shall be adjusted, if possible, rather than
voided in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Pledge Agreement shall be deemed
valid and enforceable to the full extent possible.
13. This Pledge Agreement shall be governed by, and construed in
accordance with, the laws of the State of California as applied to contracts
made and performed entirely within the State of California by residents of
such State.
Dated: January 1, 2000 PLEDGOR
/s/ Xxxxxxxxx Xxxx
------------------------
Xxxxxxxxx Xxxx
4.
