EXHIBIT 10.6
FORM OF STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this Agreement) is effective as of
December 28, 1999, by and between PHASECOM, INC., a Delaware corporation
(hereinafter the "Corporation"), and _________________ (hereinafter the
"Investor").
RECITAL
The Investor desires to purchase shares from the Corporation, and the
Corporation desires to sell to the Investor, shares of Common Stock on the
terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained in this Agreement, the parties agree
as follows:
1. SALE OF STOCK. Subject to the terms and conditions hereof, the
Corporation will issue and sell to the Investor, and the Investor will
purchase form the Corporation, two hundred thousand (200,000) shares of the
Corporation's Common Stock (the "Shares") at a per-share purchase price of
Twenty Five Hundredths U.S. Dollars ($0.25) for a total purchase price of
Fifty Thousand Dollars ($50,000) (the "Purchase Price").
2. ISSUANCE AND PAYMENT. Upon payment of the Purchase Price, the
Corporation will deliver to the Investor a certificate registered in the name
of the Investor, representing the Shares ("Certificate").
3. CORPORATION'S WARRANTIES. The Corporation hereby represents and
warrants effective as of the effective date of this Agreement as follows:
a. CORPORATE ORGANIZATION AND STANDING. The Corporation
is a corporation duly organized, existing and in good standing under the laws
of the Delaware. The Corporation has the requisite corporate power to carry
on its business and presently conducted, and as proposed or contemplated to
be conducted in the future, and to enter into and carry out the provisions of
this Agreement and the transactions contemplated hereby. The Corporation is
not presently qualified to do business as a foreign corporation in any
jurisdiction where the failure to be so qualified would materially and
adversely affect the Corporation's business.
b. AUTHORIZATION. All corporate action on the part of
the Corporation, its directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement by the
Corporation, the authorization, sale, issuance and delivery of the stock and
the performance of all of the Corporation's obligations hereunder has been
taken or will be taken prior to the issuance of the Certificate. This
Agreement, when executed and delivered by the Corporation, shall constitute a
valid and binding obligation of the Corporation, enforceable in accordance
with its terms, except as may be limited by principles of public policy, and
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued,
will be fully paid and nonassessable, and will have the rights, preferences
and privileges described in the Articles, provided, however, that the Shares
may be subject to restrictions on transfer under state and/or federal
securities laws.
c. GOVERNMENTAL CONSENTS. To the Corporation's
knowledge, no consent, approval, order, authorization or registration,
qualifications, designation, license, declarations or filings with any
Federal or state governmental authority is required on the part of the
Corporation in connection with the consummation of the transactions
contemplated herein, except for security law filings and any IITSSA filings.
4. INVESTOR REPRESENTATIONS AND WARRANTIES. The Investor represents
and warrants to the Corporation that:
a. INVESTMENT. The investor is acquiring the Shares for
investment for its own account, and not with a view to, or resale in
connection with, any distribution thereof, and he has no present intention of
selling or distributing any such Shares. The Investor understands that the
Shares have not been registered under the Securities Act of 1933 ("Securities
Act") by reason of a specific exemption from the registration provisions of
the Securities Act which depends upon, among other things, the bona fide
nature of the investment as expressed herein.
b. RULE 144. The Investor acknowledges that because the
Shares have not been registered under the Securities Act, the Shares must be
held indefinitely unless subsequently registered under the Securities Act or
an exemption from such registration is available. The Investor is aware of
the provisions of Rule 144 promulgated under the Securities Act that permits
limited resale of shares purchased in a private placement under certain
circumstances.
c. NO PUBLIC MARKET. The Investor understands that no
public market now exists for any securities issued by the Corporation and
that it is uncertain whether a public market will ever exist for any such
securities.
d. ACCESS TO DATA. The Investor has had an opportunity
to discuss the Corporation's business, management and financial affairs with
its management and to obtain any additional information given to the Investor
necessary or appropriate for deciding whether or not to purchase the Shares.
The Investor acknowledges that no representations or warranties have been
made by the Corporation or any agent thereof except as set forth in this
Agreement.
e. INVESTMENT EXPERIENCE. The Investor is an
"accredited investor" as that term is defined in Regulation D promulgated by
the Securities and Exchange Commission under the authority of the Securities
Act., and as set forth in Exhibit A, attached hereto and incorporated herein
by this reference.
f. PREVIOUS INVESTMENTS. The Investor is an investor in
securities of companies in the development stage and acknowledges that the
Investor is able to fend for himself, can bear the economic risk of its
investment and has such knowledge and experience in financial or business
matters that he is capable of evaluating the merits and risks of the
investment contemplated herein.
g. RISKS. The Investor understands that an investment
in the Corporation involves a high degree of risk and is suitable only for
investors who can afford a loss of their entire investment and who have no
need for liquidity from their investment.
h. IITSSA COMPLIANCE. If the Investor is a foreign
person, and if applicable, the Investor shall provide to the Corporation all
such information as is necessary to complete the forms required to be filed
by the Corporation with the U.S. Department of Commerce, Bureau of Economic
Analysis, under the International Investment and Trade in Services Survey
Act, as amended, and regulations issued thereunder.
i. GOVERNMENTAL CONSENTS. To the Investor's knowledge,
no consent, approval, order, authorization or registration, qualifications,
designation, license, declarations or filings with any governmental authority
outside of the United States is required on the part of the Investor in
connection with the consummation of the transactions contemplated herein.
5. RESTRICTIVE LEGENDS. Each certificate or other written
documentation representing any of the Shares which the Investor is purchasing
or may purchase hereunder and any other securities issued upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar
event (unless no longer required
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in the opinion of the counsel for the Corporation) shall be stamped or
otherwise imprinted with a legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE
SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED
UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING
SUCH SECURITIES, OR THE HOLDER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER
OF THE SECURITIES SATISFACTORY TO THE CORPORATION, STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND THE QUALIFICATION
REQUIREMENTS UNDER STATE LAW."
The Corporation shall be entitled to enter stop transfer notices on
its books with respect to the Shares.
6. STAND-OFF AGREEMENT.
a. CERTIFICATES. The Investor agrees to have any
certificate or certificates representing his, her or its Shares which are to
be issued pursuant to this Agreement bear, in addition to any other
applicable securities legends, a legend stating that the shares represented
by that certificate may not be transferred by any means whatsoever, without
the agreement of the Corporation, for a period commencing on the date of an
initial public offering of the Shares ("Offering") and ending on the one
hundred eightieth (180th) day following the commencement of the Offering (the
"Lock-Up Period").
b. NO SALES. Until the Lock-up Period expires, the
Investor agrees unless released in writing by the Corporation, not to sell,
make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Shares (other than any shares included in the
Offering). The Corporation may impose stop transfer instructions with respect
to the shares subject to the foregoing restrictions, until the end of the
Lock-Up Period. The Investor agrees to execute any and all agreements with
the Corporation and/or its investment bankers which the Corporation deems
necessary to effect the Investor's agreement set forth in the previous
sentence.
7. MISCELLANEOUS.
a. SUCCESSORS AND ASSIGNS. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
b. ENTIRE AGREEMENT. This Agreement constitutes the
full and entire understanding and agreement between and among the parties
with regard to the subjects hereof and thereof.
c. NOTICE. Any notice, payment, report or other
communication required or permitted to be given by one party to any other
party by this Agreement shall be in writing and either (i) served personally
on the other party or parties; (ii) sent by express, registered or certified
first class mail, postage prepaid, addressed to the other party or parties at
its or their address or addresses as indicated next to their signatures
below, or to such other address as any addressee shall have theretofore
furnished to the other parties by like notice; (iii) delivered by commercial
courier to the other party or parties; or (iv) sent by facsimile. Such notice
shall be deemed received on the second day after transmittal if sent by one
day courier together with a transmission of such notice by facsimile if the
recipient has the capability to receive a facsimile at its address and if
sent by other methods shall be deemed received upon receipt.
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d. FINDER'S AND BROKER'S FEES. Each party hereto
represents and warrants that he, she or it has retained no finder or broker
in connection with the transactions contemplated by this Agreement, and
hereby agrees to indemnify and to hold the other harmless from any liability
for any finder's or broker's fee to any broker or other person or firm (and
the costs and expenses of defending against such liability or asserted
liability) for which such indemnifying person, or any of its employees or
representatives, are responsible.
e. TITLES AND SUBTITLES. The titles of the Sections and
subsections of this Agreement are for the convenience of reference only and
are not to be considered in construing this Agreement.
f. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
g. APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of California
applicable to contracts between California residents entered into and to be
performed entirely within the State of California.
h. ARBITRATION. Any dispute between the parties arising
out of this Agreement shall be submitted to final and binding arbitration in
the City of San Xxxx, County of Santa Xxxxx, State of California, under the
Commercial Arbitration Rules of the American Arbitration Association then in
effect, upon written notification and demand of either party therefor. In the
event either party demands such arbitration, the American Arbitration
Association shall be requested to submit a list of prospective arbitrators
consisting of persons experienced in matters involving securities offerings.
The provisions of California Code of Civil Procedure Section 1283.05 and the
laws of the State of California are incorporated herein and shall be
applicable to the arbitration. In making the award, the arbitrator shall
award recovery of costs and expenses of the arbitration and reasonable
attorney's fees to the prevailing party. Any award may be entered as a
judgement in any court of competent jurisdiction. Should judicial proceedings
be commenced to enforce or carry out this provision or any arbitration award,
the prevailing party in such proceedings shall be entitled to reasonable
attorneys' fees and costs in addition to other relief. Either party shall
have the right, prior to receiving an arbitration award, to obtain
preliminary relief from a court of competent jurisdiction to avoid injury or
prejudice to that party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be effective as of the day and year hereinabove first written.
CORPORATION: INVESTOR:
PHASECOM, INC.
By:________________________ ____________________________
___________________________
(Print Name and Title)
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