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EXHIBIT 10.6-8
EMPLOYEE STOCK PURCHASE AGREEMENT
This Agreement is made as of the _____ day of _______ by and between PLX
TECHNOLOGY Inc., a California corporation (the "Corporation"), and ________ (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Corporation desires to issue, and the Purchaser desires to
purchase, Common Stock of the Corporation as herein described, on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. The Purchaser hereby agrees to purchase from the Corporation and the
Corporation agrees to sell to the Purchaser _______ shares of the Corporation's
Common Stock for a purchase price of _______ per share.
2. (a) All of the shares of the Corporation's Common Stock being
purchased by the Purchaser pursuant to this Agreement (hereinafter sometimes
collectively referred to as the "Stock") shall be subject to the option as to
the Stock ("Purchase Option") set forth in this paragraph 2. In the event the
Purchaser shall cease to be employed by the Corporation (including a parent or
subsidiary of the Corporation) for any reason, or no reason, with or without
cause, the Corporation shall have the right, at any time within 60 days after
the date the Purchaser ceases to be so employed, to exercise the Purchase
Option, which consists of the right to purchase from the Purchaser or his
personal representative, as the case may be, at the purchase price per share set
forth in paragraph 1 above (the "Option Price"), up to but not exceeding the
number of shares of Stock specified in subparagraph (b) below, upon the terms
hereinafter set forth.
(b) Until ______________, all of the shares of the Stock shall
constitute shares subject to the Purchase Option (the "Shares Subject to
Repurchase"). On ___________ the number of Shares Subject to Repurchase shall be
reduced by twenty-five percent (25%) to seventy-five percent (75%) of the Stock.
Thereafter, at the end of each calendar month during which the Purchaser is
employed by the Corporation, the Shares Subject to Repurchase shall be reduced
by an additional two and eighty-three one thousands percent (2.083%) of the
Stock.
(c) This Agreement is not an employment contract, and nothing in
this Agreement shall affect in any manner whatsoever the right or power of the
Corporation, or a parent or subsidiary of the Corporation, to terminate
Purchaser's employment, for any reason, with or without the cause.
3. The Purchase Option shall be exercised by written notice signed by an
officer of the Corporation and delivered or mailed as provided in paragraph 14.
The Option Price shall be payable, at the option of the Corporation, in
cancellation of all or a portion of any outstanding indebtedness of the
Purchaser to the Corporation or in cash (by check) or both.
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4. The Corporation may assign its rights under paragraphs 2 and 3
hereof.
5. If, from time to time during the term of the Purchase Option:
(i) there is any stock dividend or liquidating dividend of cash
and/or property stock split, or other change in the character or amount
of any of the outstanding securities of the Corporation; or
(ii) there is any consolidation, merger or sale of all, or
substantially all, of the assets of the Corporation;
then, in such event any and all new, substituted or additional securities or
other property to which the Purchaser is entitled by reason of his ownership of
the Stock shall be immediately subject to the Purchase Option and be included in
the word "Stock" for all purposes of the Purchase Option with the same force and
effect as the shares of Stock subject to the Purchase Option under the terms of
paragraph 2. While the total Option Price shall remain the same after each such
event, the Option Price per share of Stock upon exercise of the Purchase Option
shall be appropriately adjusted.
6. All certificates representing any shares of Stock subject to the
provisions of this Agreement shall have endorsed thereon legends substantially
to the following effect:
(a) "Any disposition of any interest in the securities
represented by this certificate is subject to restrictions, and the securities
represented by this certificate are subject to an option, contained in a certain
agreement by the record holder hereof and the corporation, a copy of which will
be mailed to any holder of this certificate without charge within 5 days of
receipt by the corporation of a written request therefor."
(b) "The securities represented by this certificate have not been
registered under the Securities Act of 1933 and, accordingly, may not be offered
for sale, sold or otherwise transferred except (i) upon effective registration
of the securities represented by this certificate under the Securities Act of
1933, or (ii) upon acceptance by the issuer of an opinion of counsel in such
form and by such counsel, or other documentation, as shall be satisfactory to
counsel for the issuer that such registration is not required."
(c) Any legend required to be placed thereon by appropriate Blue
Sky officials.
(d) Any legend required to be placed thereon by the Corporation's
bylaws.
7. The Purchaser acknowledges and is aware that the Stock to be issued
to him by the Corporation pursuant to this Agreement has not been registered
under the Securities Act of 1933, as amended. In this connection, Purchaser
warrants and represents to the Corporation that he is acquiring the Stock for
investment and not with a view to or for sale in connection with any
distribution of said Stock or with any present intention of distributing or
selling said Stock and he does not presently have reason to anticipate any
change in circumstances or any particular occasion or event which would cause
him to sell said Stock. On or prior to the closing
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hereunder, Purchaser shall execute and deliver to the Corporation a letter
confirming the investment representations set forth herein, substantially in the
form attached hereto as Exhibit 1 and incorporated by this reference.
8. As security for his faithful performance of the terms of this
Agreement and to insure that the Stock will be available for delivery upon
exercise of the Purchase Option by the Corporation as herein provided, the
Purchaser agrees to deliver to and deposit with the Secretary of the Corporation
(the "Escrow Agent"), as escrow agent in this transaction, two Stock Assignments
duly endorsed (with date and number of shares blank) in the form attached hereto
as Exhibit 2, together with the certificate or certificates evidencing the
Stock, said documents to be held by the Escrow Agent and delivered by the Escrow
Agent pursuant to the joint Escrow Instructions of the Corporation and the
Purchaser set forth in Exhibit 3 attached hereto and incorporated by this
reference, which instructions shall also be executed by the Purchaser and
delivered to the Escrow Agent at the closing hereunder.
9. The Purchaser shall not sell or transfer any shares of the Stock then
subject to the Purchase Option.
10. The Corporation shall not be required (i) to transfer on its books
any shares of Stock of the Corporation which shall have been sold or transferred
in violation of any of the provisions set forth in this Agreement or (ii) to
treat as owner of such shares or to accord the right to vote as such owner or to
pay dividends to any transferee to whom such shares shall have been so
transferred.
11. Subject to the provisions of paragraph 9 above, the Purchaser shall,
during the term of this Agreement, exercise all rights and privileges of a
shareholder of the Corporation with respect to the Stock deposited in said
escrow.
12. Sections 2, 3, and 4 of this Agreement shall terminate on
____________ or upon the exercise in full of the Purchase Option, whichever
first occurs.
13. The parties agree to execute such further instruments and to take
such further action as may reasonably be necessary to carry out the intent of
this Agreement.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to the other party hereto at his address hereinafter
shown below his signature or at such other address as such party may designate
by ten days' advance written notice to the other party hereto.
15. This Agreement shall be governed by the laws of the State of
California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
PLX TECHNOLOGY, INC.
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By ________________________________
Xxxxxxx X. Xxxxxxx
Title: President
PURCHASER
________________________________
Address:
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EXHIBIT 1
to
Employee Stock Purchase Agreement
"Investment Letter"
PLX TECHNOLOGY, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Gentlemen:
In connection with the proposed purchase of _______ shares of Common Stock (the
"Securities") of PLX TECHNOLOGY, INC., a California corporation (the
"Corporation"), by ____________ (the "Purchaser"), the Purchaser hereby agrees,
represents, and warrants as follows:
1. Purchase Entirely for Own Account.
I represent and warrant that I am purchasing the Securities
solely for my own account for investment and not with a view to or for sale or
distribution of the Securities or any portion thereof and not with any present
intention of selling, offering to sell or otherwise disposing of or distributing
the Securities or any portion thereof. I also represent that the entire legal
and beneficial interest of the Securities I am purchasing is being purchased
for, and will be held for the account of, the Purchaser only and neither in
whole nor in part for any other person.
2. Residence.
I represent and warrant that my principal residence is in the
United States and is located at:
_________________________
_________________________
3. Information Concerning Corporation.
I represent and warrant that I have heretofore discussed the
Corporation and its plans, operations and financial condition with its officers
and that I have heretofore received all such information as I deem necessary and
appropriate to enable me to evaluate the financial risk inherent in making an
investment in the Securities of the Corporation and I further represent and
warrant that I have received satisfactory and complete information concerning
the business and financial condition of the Corporation in response to all
inquiries in respect thereof.
4. Economic Risk.
I represent and warrant that I realize that my purchase of the
Securities will be a highly speculative investment and that I am able, without
impairing my financial condition,
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to hold the Securities for an indefinite period of time and to suffer a complete
loss on my investment.
5. Restricted Securities.
I represent and warrant that the Corporation has disclosed to me
in writing:
(a) that the sale of the Securities which I am purchasing has not
been registered under the Securities Act of 1933, as amended (the "Act"), and
the Securities must be held indefinitely unless a transfer of them is
subsequently registered under the Act or an exemption from such registration is
available;
(b) in any event, during the period ending on the later of (i)
nine months from the date of sale of the Securities to me and (ii) nine months
from the date of any other sale by the Corporation of any of its Common Stock or
any similar security which might be deemed to be part of the same issue as the
sale of Securities to me, any resale or other transfer of the Securities by me
may be made only in accordance with appropriate state securities laws;
(c) that the sale of the Securities which I am purchasing is
subject to a right of first refusal held by the Corporation and its assigns as
set forth in the Corporation's bylaws;
(d) the share certificate representing the Securities will be
stamped with the legends restricting transfer specified in the Employee Stock
Purchase Agreement between the Corporation and the Purchaser dated as of
__________________ ; and
(e) the Corporation will make a notation in its records of the
aforementioned restrictions on transfer and legends.
6. Disposition under Rule 144.
I represent and warrant that I understand that the Securities are
restricted securities within the meaning of Rule 144 promulgated under the Act;
that the exemption from registration under Rule 144 will not be available in any
event for at least one (1) year from the date of sale of the Securities to me,
and even then will not be available unless (i) a public trading market then
exists for the Common Stock of the Corporation, (ii) adequate information
concerning the Corporation is then available to the public, and (iii) other
terms and conditions of Rule 144 are complied with; and that any sale of the
Securities may be made by me only in limited amounts in accordance with such
terms and conditions.
7. Further Limitations on Disposition.
Without in any way limiting my representations set forth above, I
further agree that I shall in no event make any disposition of all or any
portion of the Securities which I am purchasing unless and until:
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(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with said Registration Statement; or
(b) (i) I shall have notified the Corporation of the proposed
disposition and shall have furnished the Corporation with a detailed statement
of the circumstances surrounding the proposed disposition, (ii) I shall have
furnished the Corporation with an opinion of my own counsel to the effect that
such disposition will not require registration of such shares under the Act, and
(iii) such opinion of my counsel shall have been concurred in by counsel for the
Corporation, such concurrence not to be unreasonably withheld, and the
Corporation shall have advised me of such concurrence.
Dated as of _____________________.
Very truly yours,
__________________________________
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EXHIBIT 3
To
Employee Stock Purchase Agreement
Joint Escrow Instructions
Date: ______________________
Secretary
PLX Technology, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Sir:
As Escrow Agent for both PLX Technology, Inc. (the "Corporation"), and
_________________ ( "Purchaser"), you are hereby authorized and directed to hold
the documents delivered to you pursuant to the terms of that certain Employee
Stock Purchase Agreement ("Agreement") dated as of _________________, to which a
copy of these Joint Escrow Instructions is attached as Exhibit 3, in accordance
with the following instructions:
1. In the event the Corporation shall elect to exercise the Purchase
Option set forth in the Agreement, the Corporation shall give the Purchaser and
you a written notice specifying the number of shares of stock to be purchased,
the purchase price, and the time for a closing thereunder at the principal
office of the Corporation. Purchaser and the Corporation hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver the same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation against the
simultaneous delivery to you of the purchase price (by check) for the number of
shares of stock being purchased pursuant to the exercise of the Purchase Option.
3. Purchaser irrevocably authorizes the Corporation to deposit with you
any certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as referred to in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the terms of this escrow to execute with respect
to such securities negotiable and complete any transaction herein contemplated,
including but not limited to any appropriate filing with state or government
officials or bank officials. Subject to the provisions of this paragraph 3,
Purchaser shall exercise all rights and privileges of a shareholder of the
Corporation while the stock is held by you.
4. This escrow shall terminate upon termination of Sections 2, 3 and 4
of the Agreement in accordance with the provisions of paragraph 12 thereof.
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5. If at the time of termination of this escrow you should have in your
possession any documents, securities or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder.
6. 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. 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
in the exercise of you own good judgment, 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,
authorities 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 the
Statute of Limitations with respect to these Joint Escrow, Instructions or any
documents deposited with you.
11. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be Secretary of the Corporation or if you shall resign by
written notice to each party. In the event of any such termination, the
Corporation shall appoint your successor as Secretary of the Corporation as
successor Escrow Agent.
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 held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction
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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 or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following address, or at such other addresses as a party may designate by
twenty-one days' advance written notice to each of the other parties hereto.
CORPORATION: PLX TECHNOLOGY, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
PURCHASER: _________________
_________________
_________________
ESCROW AGENT: Secretary
PLX TECHNOLOGY, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
15. By signing these Joint Escrow Instructions, you become a part 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
as you may deem necessary properly to advice you in connection with your
obligations hereunder, you may rely upon the advice of such counsel, and you may
pay such counsel reasonable compensation therefor. The Corporation shall be
responsible for all fees generated by such legal counsel in connection with your
obligations hereunder.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
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18. This Agreement shall be governed by the laws of the State of
California.
Very truly yours,
PLX TECHNOLOGY, Inc.
By:________________________________
Xxxxxxx X. Xxxxxxx
Title: President
PURCHASER:
___________________________________
ESCROW AGENT:
___________________________________
__________________, Secretary
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