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EXHIBIT 10.1
CLICKOVER, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
Page
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1. Issue of Preferred Stock............................................................1
1.1 Issuance of Preferred Stock..................................................1
1.2 Closing......................................................................1
2. Definitions.........................................................................2
2.1 "Material Adverse Event".....................................................2
2.2 "Subsidiary".................................................................2
3. Representations and Warranties of the Company to Investors..........................2
3.1 Corporate Organization and Authority.........................................3
3.2 Capitalization...............................................................3
3.3 Subsidiaries.................................................................4
3.4 Authorization................................................................4
3.5 Corporate Power..............................................................4
3.6 Validity of Shares...........................................................5
3.7 No Conflict with Other Instruments...........................................5
3.8 No Defaults, Violations, or Conflicts........................................6
3.9 Private Offering.............................................................6
3.10 Employee Confidential Information and Inventions Agreement...................6
3.11 Brokers and Finders..........................................................6
4. Representations and Warranties of the Investors.....................................7
4.1 Authorization................................................................7
4.2 Brokers and Finders..........................................................7
4.3 Investment...................................................................7
4.4 No Public Market.............................................................7
4.5 Limitations on Transferability...............................................8
4.6 Experience...................................................................9
4.7 Legends......................................................................9
5. Conditions of Investors' Obligations at Closing....................................10
5.1 Representations and Warranties..............................................10
5.2 Performance.................................................................10
5.3 Qualifications..............................................................10
5.4 Restated Articles...........................................................10
5.5 Proceedings Satisfactory; Compliance Certificate............................11
5.6 Stock Restriction Agreements................................................11
6. Conditions of the Company's Obligations at Closing.................................11
6.1 Representations and Warranties..............................................11
6.2 Blue Sky Compliance.........................................................11
6.3 Restated Articles...........................................................11
6.4 Legal Matters...............................................................12
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TABLE OF CONTENTS (Continued)
Page
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7. Post-Closing Covenants of the Company..............................................12
7.1 Securities Laws Compliance..................................................12
7.2 Employee Confidential Information and Inventions Agreement..................12
7.3 Stock Purchase and Restriction Agreements...................................12
7.4 Stock Plans.................................................................13
8. Miscellaneous......................................................................13
8.1 Entire Agreement; Successors and Assigns....................................13
8.2 Governing Law...............................................................13
8.3 Counterparts................................................................13
8.4 Headings....................................................................14
8.5 Notices.....................................................................14
8.6 Survival of Warranties......................................................14
8.7 Amendment of Agreement......................................................14
8.8 California Securities Laws..................................................15
8.9 Finders Fees................................................................15
8.10 Expenses....................................................................15
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT (the
"Agreement") is made as of August __, 1996, by and among ClickOver, Inc., a
California corporation (the "Company"), and the Investors listed in Schedule 1.1
attached hereto (the "Investors").
R E C I T A L S
A. The Board of Directors of the Company has adopted the Amended
and Restated Articles of Incorporation ("Restated Articles") in the form
attached hereto as Exhibit A which, among other matters, establish the rights,
preferences and privileges of the Company's no par value Series A Preferred
Stock (the "Preferred Stock").
B. The Company desires to issue up to Five Hundred Twenty-Five
Thousand (525,000) shares of Preferred Stock to the Investors, and the Investors
desire to purchase up to Five Hundred Twenty-Five Thousand (525,000) shares of
Preferred Stock, on the terms and subject to the conditions set forth in this
Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Issue of Preferred Stock.
1.1 Issuance of Preferred Stock. The Company shall issue to the
Investors and the Investors shall obtain from the Company, at an issue price of
$0.20 per share, a total of up to Five Hundred Twenty-Five Thousand (525,000)
shares of Series A Preferred Stock (the "Shares"). The number of Shares to be
purchased by each Investor is set forth opposite the name of each Investor on
Schedule 1.1.
1.2 Closing. The closing of the purchase and sale of the Shares
shall take place at the offices of Heller, Ehrman, White & XxXxxxxxx, 000
Xxxxxxxxxx Xxxxxx, Xxxx Xxxx,
0
Xxxxxxxxxx 00000-0000, on August 21, 1996, at 3:00 p.m. (the "Closing") or at
such other place and time as the Company and a majority of the Investors
mutually agree. At the Closing, each Investor shall each purchase that number of
Shares designated in Schedule 1.1 to be purchased by such Investor for the
purchase price set forth in Schedule 1.1. At the Closing, the Company will
deliver to each Investor a certificate representing the Shares which such
Investor is obtaining at the Closing against delivery to the Company by such
Investor at the Closing of (a) an executed counterpart of this Agreement, and
(b) the issue price of such shares as set forth in Schedule 1.1 by wire
transfer, cancellation of indebtedness, or by a check payable to the Company.
2. Definitions. For purposes of this Agreement:
2.1 "Material Adverse Event" shall mean an occurrence having a
consequence that either (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company or materially
changes the equity ownership of the Company, or (b) is reasonably foreseeable,
and if it were to occur might materially adversely affect the business,
properties, prospects, or financial condition of the Company.
2.2 "Subsidiary" means any corporation more than 50% of whose
stock (measured by virtue of voting rights) in the aggregate is owned by the
Company.
3. Representations and Warranties of the Company to Investors. Except as
set forth in the Schedule of Exceptions attached as Exhibit B, the Company
hereby represents and warrants to each Investor that:
3.1 Corporate Organization and Authority. The Company:
(a) is a corporation duly organized, validly existing,
authorized to exercise all its corporate powers, rights and privileges, and in
good standing in the State of California;
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(b) has the corporate power and corporate authority to own
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted; and
(c) is qualified as a foreign corporation in all
jurisdictions in which such qualification is required; provided, however, that
the Company need not be qualified in a jurisdiction in which its failure to
qualify would not have a material adverse effect on the, business, properties,
prospects or financial condition of the Company.
3.2 Capitalization. Immediately prior to the Closing, the
authorized capital of the Company shall consist of: Twelve Million (12,000,000)
shares of Common Stock, of which Four Million One Hundred Three Thousand Four
Hundred Eight (4,103,408) are issued and outstanding as of the Closing Date and
held by the persons and in the amounts set forth in Exhibit B and Three Million
(3,000,000) shares of Preferred Stock (the "Preferred") of which Five Hundred
Twenty-Five Thousand (525,000) have been designated Series A Preferred. No
shares of Preferred are issued and outstanding. The Series A Preferred shall
have the rights, preferences, privileges, and restrictions set forth in the
Restated Articles. The outstanding shares have been duly authorized and validly
issued (including, without limitation, issued in compliance with applicable
federal and state securities laws), fully-paid, and non-assessable. Except as
set forth herein or in Exhibit B, there are no outstanding warrants, options,
conversion privileges, preemptive rights, or other rights or agreements to
purchase or otherwise acquire or issue any equity securities of the Company, nor
has the issuance of any of the aforesaid rights to acquire securities of the
Company been authorized. The Company is not a party or subject to any agreement
or understanding, and, to the Company's knowledge, there is no agreement or
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understanding between any persons and/or entities, which affects or relates to
the voting or giving of written consents with respect to any security or by a
director of the Company.
3.3 Subsidiaries. The Company does not presently own, have any
investment in, or control, directly or indirectly, any Subsidiaries,
associations, or other business entities. The Company is not a participant in
any joint venture or partnership.
3.4 Authorization. All corporate action on the part of the
Company, its officers, directors, and stockholders necessary for the
authorization, execution, delivery, and performance of all obligations under
this Agreement and for the authorization, issuance, and delivery of the Shares
and of the Common Stock issuable upon conversion of the Shares has been taken,
and this Agreement constitute legally binding and valid obligations of the
Company enforceable in accordance with their terms.
3.5 Corporate Power. The Company will have at each Closing Date
all requisite legal and corporate power and authority to execute and deliver the
Agreement, to sell and issue the Shares hereunder, to issue the Common Stock
issuable upon conversion of the Shares, and to carry out and perform its
obligations under the terms of the Agreement.
3.6 Validity of Shares. The Shares, when issued, sold, and
delivered in accordance with the terms and for the consideration expressed in
this Agreement, will be duly and validly issued (including, without limitation,
issued in compliance with applicable federal and state securities laws) and
non-assessable. The Common Stock issuable upon conversion of the Shares has been
duly and validly reserved and, assuming such Common Stock is issued to the
Investors, upon issuance in accordance with the Restated Articles will be duly
and validly issued (including, without limitation, issued in compliance with all
applicable federal and state securities laws) and non-assessable and will be
free of any liens or encumbrances other than any
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liens or encumbrances created by or imposed thereon by the holders; provided,
however, that the Shares (and the Common Stock issuable upon conversion thereof)
shall be subject to restrictions on transfer under state and/or federal
securities laws. The Shares and Common Stock issuable upon conversion of the
Shares are not subject to any preemptive rights or rights of first refusal,
except as otherwise so agreed to by the holders thereof.
3.7 No Conflict with Other Instruments. The execution, delivery,
and performance of this Agreement will not result in any violation of, be in
conflict with, or constitute a default under, with or without the passage of
time or the giving of notice: (i) any provision of the Company's Restated
Articles or Bylaws; (ii) any provision of any judgment, decree, or order to
which the Company is a party or by which it is bound; (iii) any material
contract, obligation, or commitment to which the Company is a party or by which
it is bound; or (iv) to the Company's knowledge, any statute, rule, or
governmental regulation applicable to the Company.
3.8 No Defaults, Violations, or Conflicts. The company is not in
violation of any term or provision of any charter provision, bylaw, or any
material term or provision of any indebtedness, mortgage, indenture, contract,
agreement, judgment, or to the Company's knowledge, any decree, order, statute,
rule, or regulation applicable to the Company where such violation, or
violations in the aggregate, is a Material Adverse Event.
3.9 Private Offering. The Company agrees that neither the Company
nor anyone acting on its behalf will offer any of the Shares or any similar
securities for issuance or sale to, or solicit any offer to acquire any of the
same from, anyone or take any other action so as to make the issuance and sale
of the Shares subject to the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "Securities Act").
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3.10 Employee Confidential Information and Inventions Agreement.
Each officer, employee, and consultant of the Company has executed and delivered
to the Company an Employee Confidential Information and Inventions Agreement
substantially in the form of Exhibit 7.2. The Company, after reasonable
investigation, is not aware that any of its employees, officers, or consultants
is in violation thereof, and the Company will use its best efforts to prevent
any such violation.
3.11 Brokers and Finders. The Company has not retained any
investment banker, broker, or finder in connection with the transactions
contemplated by this Agreement.
4. Representations and Warranties of the Investors. Each Investor
represents and warrants to the Company as follows:
4.1 Authorization. When executed and delivered by Investor, and
assuming execution and delivery by the Company, the Agreement will each
constitute a valid obligation of such Investor, enforceable in accordance with
their respective terms.
4.2 Brokers and Finders. Investor has not retained any investment
banker, broker, or finder in connection with the transactions contemplated by
this Agreement.
4.3 Investment. This Agreement is made with Investor in reliance
upon its representation to the Company, which by Investor's execution of this
Agreement Investor hereby confirms, that the Shares to be received by Investor
will be acquired for investment for Investor's own account, not as a nominee or
agent, and not with a view to the sale or distribution of any part thereof, and
that Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement, Investor
further represents that it has no contract, undertaking, agreement, or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person, with respect to any of the Shares.
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4.4 No Public Market. Investor understands and acknowledges that
the offering of the Shares pursuant to this Agreement will not be registered
under the Securities Act on the grounds that the offering and sale of securities
contemplated by this Agreement are exempt from registration pursuant to Section
4(2) of the Securities Act, and that the Company's reliance upon such exemption
is predicated upon Investor's representations set forth in this Agreement.
Investor further understands that no public market now exists for any of the
securities issued by the Company and that the Company has made no assurances
that a public market will ever exist for the Company's securities
4.5 Limitations on Transferability. Investor covenants that in no
event will it dispose of any of the Shares (other than pursuant to Rule 144
promulgated by the Securities and Exchange Commission ("Commission") under the
Securities Act ("Rule 144") or any similar or analogous rule) unless and until
(i) Investor shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and (ii), if requested by the Company,
Investor shall have furnished the Company with an opinion of counsel
satisfactory in form and substance to the Company and the Company's counsel to
the effect that (x) such disposition will not require registration under the
Securities Act and (y) appropriate action necessary for compliance with the
Securities Act and any applicable state, local, or foreign law has been taken.
Notwithstanding the limitations set forth in the foregoing sentence, if Investor
is a partnership it may transfer Shares to its constituent partners or a retired
partner of such partnership who retires after the date hereof, or to the estate
of any such partner or retired partner or transfer by gift, will, or intestate
succession to any such partner's spouse or lineal descendants or ancestors
without the necessity of registration or opinion of counsel if the transferee
agrees in writing to be subject to the terms
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of this Agreement to the same extent if such transferee were an Investor;
provided, however, that Investor hereby covenants not to effect such transfer if
such transfer either would invalidate the securities laws exemptions pursuant to
which the Shares were originally offered and sold or would itself require
registration under the Securities Act or applicable state securities laws. Each
certificate evidencing the Shares transferred as above provided shall bear the
appropriate restrictive legend set forth in Section 4.7 below, except that such
certificate shall not bear such legend if the transfer was made in compliance
with Rule 144 or if the opinion of counsel referred to above is to the further
effect that such legend is not required in order to establish compliance with
any provisions of the Securities Act.
4.6 Experience. Investor represents that: (i) it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its prospective investment in the Shares;
(ii) it believes it has received all the information it has requested from the
Company and considers necessary or appropriate for deciding whether to obtain
the Shares; (iii) it has had the opportunity to discuss the Company's business,
management, and financial affairs with its management, (iv) it has the ability
to bear the economic risks of its prospective investment; and (v) it is able,
without materially impairing its financial condition, to hold the Shares for an
indefinite period of time and to suffer a complete loss on its investment. The
foregoing, however, does not modify the representations and warranties of the
Company in Section 3 of this Agreement or the right of the Investor to rely
thereon.
4.7 Legends.
(a) All certificates for the Shares shall bear the following
legend:
"The securities represented hereby have not been registered under
the Securities Act of 1933, as amended ("Act"). Such securities may not
be
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transferred unless a Registration Statement under the Act is in effect
as to such transfer or, in the opinion of counsel for the Company,
registration under the Act is unnecessary in order for such transfer to
comply with the Act or unless sold pursuant to Rule 144 of the Act."
(b) The certificates evidencing the Shares shall also bear
any legend required by the Commissioner of Corporations of the State of
California or required pursuant to any state, local, or foreign law
governing such securities.
5. Conditions of Investors' Obligations at Closing. The obligations of
each Investor under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by such Investor:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 3 shall be true on and as of the
Closing with the same effect as if made on and as of the Closing.
5.2 Performance. The Company shall have performed or fulfilled
all agreements, obligations, and conditions contained herein required to be
performed or fulfilled by the Company before the Closing.
5.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or
any state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained effective as of the
Closing.
5.4 Restated Articles. The Company shall have filed its Restated
Articles with the Secretary of State of the State of California, which Restated
Articles shall be in full force and effect on the Closing Date.
5.5 Proceedings Satisfactory; Compliance Certificate. All
corporate and legal proceedings taken by the Company in connection with the
transactions contemplated by this
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Agreement and all documents and papers relating to such transactions shall be
satisfactory in all material respects to the Investors, in the reasonable
exercise of their judgment. The Company shall have delivered to the Investors a
certificate dated as of the Closing, signed by the Company's President,
certifying that the conditions set forth in Sections 5.1, 5.2, and 5.6 have been
satisfied.
5.6 Stock Restriction Agreements. Each holder of Common Stock
shall have executed and delivered to the Company a Stock Restriction Agreement
substantially in the form of Exhibit 5.6 attached hereto.
6. Conditions of the Company's Obligations at Closing. The obligations
of the Company under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by the Company:
6.1 Representations and Warranties. The representations and
warranties of the Investors contained in Section 4 shall be true on and as of
the Closing with the same effect as though said representations and warranties
had been made on and as of the Closing.
6.2 Blue Sky Compliance. The Company shall have complied with and
be effective under the securities laws of the State of California and any other
applicable states as necessary to offer and sell the Shares to the Investors.
6.3 Restated Articles. The Restated Articles shall have been
filed with the Secretary of State of the State of California and shall be in
full force and effect on the Closing Date.
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6.4 Legal Matters. All material matters of a legal nature
which pertain to this Agreement and the transactions contemplated hereby shall
have been reasonably approved by counsel to the Company.
7.Post-Closing Covenants of the Company.
7.1 Securities Laws Compliance. The Company shall, within 15
days after the Closing, file a notice of the sale of the Shares to the Investors
pursuant to Section 25102(f) of the California Corporations Code, and shall make
any filings necessary under the securities or Blue Sky laws of any other
applicable jurisdiction.
7.2 Employee Confidential Information and Inventions
Agreement. Unless otherwise determined by the unanimous vote of the Board of
Directors, the Company shall require all future officers, directors, and
employees of, and consultants to, the Company to execute and deliver an Employee
Confidential Information and Inventions Agreement in substantially the form of
Exhibit 7.2.
7.3 Stock Purchase and Restriction Agreement. The Company
shall cause all future purchasers of, and all future holders of options to
purchase, shares of the Company's Common Stock to execute and deliver Stock
Purchase and Restriction Agreements or Stock Option Agreements substantially in
the form of Exhibit 5.6 and providing for four-year vesting or such other period
as approved from time to time by the Board of Directors.
7.4 Stock Plans. The Company may sell shares of stock and
grant options to employees, advisors, officers, and directors of, and
consultants to, the Company only pursuant to a customary stock option plan, or
pursuant to such other arrangements, contracts, or plans as are recommended by
management and approved by the Board of Directors.
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7.5 Registration Rights. The Company shall grant to the
Investors piggyback registration rights on a pari passu basis with any piggyback
registration rights granted to the investors in the Company's next round of
equity financing.
8 Miscellaneous.
8.1 Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire contract between the Company and the Investors relative
to the subject matter hereof. Any previous agreement between the Company and the
Investors is superseded by this Agreement. Subject to the exceptions
specifically set forth in this Agreement, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successors, and assigns of the parties.
8.2 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, excluding
those laws that direct the application of the laws of another jurisdiction.
8.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.4 Headings. The headings of the Sections of this Agreement are
for convenience and shall not by themselves determine the interpretation of this
Agreement.
8.5 Notices. Any notice required or permitted hereunder shall
be given in writing and shall be conclusively deemed effectively given upon
personal delivery or delivery by courier, or five days after deposit in the
United States mail, by registered or certified mail, postage prepaid, addressed
to the Company or the Investors, as the case may be, as set forth
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below its name on the signature page of this Agreement, or at such other address
as the Company or such Investor may designate by ten (10) days' advance written
notice to the other.
8.6 Survival of Warranties. The warranties and representations
of the parties contained in or made pursuant to this Agreement shall survive for
one year after the execution and delivery of this Agreement and the Closing;
provided, however, that such representations and warranties need only be
accurate as of the date of such execution and delivery and as of the Closing.
8.7 Amendment of Agreement. Any provision of this Agreement
may be amended by a written instrument signed by the Company and by persons
holding at least a majority of the aggregate of (a) the then outstanding Shares
(assuming conversion to Common Stock at the conversion rate then in effect) and
(b) the then outstanding shares of Common Stock into which the shares of
Preferred Stock have been converted, other than shares of Common Stock which
have been sold to the public.
8.8 California Securities Laws. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
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8.9 Finders Fees. Each of the Company and the Investors will
indemnify the other against all liabilities incurred by the indemnifying party
with respect to claims related to investment banking or finders fees in
connection with the transactions contemplated by this Agreement, arising out of
arrangements between the party asserting such claims and the indemnifying party,
and all costs and expenses (including reasonable fees of counsel) of
investigating and defending such claims.
8.10 Expenses. The Company and the Investors will bear their
respective legal and other fees and expenses with respect to this Agreement and
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Series
A Preferred Stock Purchase Agreement as of the day and year first above written.
COMPANY:
CLICKOVER, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx, President
Address: 000 Xxxx
Xxxx Xxxx, XX 00000
INVESTORS:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxx-Xxxx Xxx
-----------------------------------------
Xxxx-Xxxx Xxx
/s/ Fah-Xxxx Xxxxxx
-----------------------------------------
Fah-Xxxx Xxxxxx
/s/ Xxxxxx Xxxx
-----------------------------------------
Xxxxxx Xxxx
/s/ Chi Xxxxx Xxxx
-----------------------------------------
Chi Xxxxx Xxxx
/s/ Xxxx Xxxxx
-----------------------------------------
Xxxx Xxxxx
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EXHIBITS AND SCHEDULES
Section
Exhibit A Amended and Restated Articles of Incorporation
Exhibit B Schedule of Exceptions to Representations and Warranties
Exhibit 5.6 Stock Restriction Agreement
Exhibit 7.2 Employee Confidential Information and Inventions Agreement
Schedule 1.1 Schedule of Investors
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SCHEDULE 1.1
Schedule of Investors
Name of Investor Number of Shares Purchase Price
---------------- ---------------- --------------
Xxxxxx Xxxxxxxxx 75,000 $ 15,000.00
Address: c/o ClickOver
000 Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Chi-Xxxx Xxx 75,000 15,000.00
Address: c/o ClickOver
000 Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Fah-Xxxx Xxxxxx 150,000 30,000.00
Address:
---------------------
---------------------
---------------------
Xxxxxx Xxxx 100,000 20,000.00
Address: 000 Xxxxx 00xx Xxxxxx
Xxx. 0000
Xxxxxxxxxxxx, XX 00000
Chi Xxxxx Xxxx 100,000 20,000.00
Address: 0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxx Xxxxx 25,000 5,000.00
-------- -----------
Address: 000 Xxxxxxx Xxxx
Xxx Xxxxxxxxx, XX 00000
525,000 $105,000.00
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EXHIBIT B
SCHEDULE OF EXCEPTIONS
TO REPRESENTATIONS AND WARRANTIES
This Schedule of Exceptions set forth exceptions to the representations
and warranties specified in Section 3 of the Agreement. Unless the context
otherwise requires, all capitalized terms herein have the same meaning as
defined in the Agreement. The Section numbers indicated herein refer to Sections
in the Agreement; however, the exceptions set forth herein shall apply to any of
the representations and warranties where appropriate.
3.2 Capitalization
a) Common Stock. The Company has issued shares of Common Stock to each
of the following persons in the amounts set forth by their name.
NAME OF SHAREHOLDER NUMBER OF SHARES
------------------- ----------------
Xxxxxx Xxxxxxxxx 1,982,961
Xxxx-Xxxx Xxx 1,321,974
Fah-xxxx Xxxxxx 198,473
Thi Thumasathit 600,000
Substantially all of such shares are subject to a right of repurchase in
favor of the Company upon the termination of employment with the Company. Except
with respect to the shares held by Xx. Xxxxxx, this right expires (i) with
respect to 25% of the shares one year after the commencement of employment, and
quarterly thereafter with respect to a ratable portion of the remaining shares,
and (ii) with respect to all shares upon an acquisition of the Company and with
respect to an additional 25% of the shares (12 months additional vesting) upon a
termination other than for cause. For Xx. Xxxxxx, the right of repurchase
expires with respect to 50% of the shares after one year and quarterly
thereafter with respect to an additional 12.5% of the shares. Expiration of the
right of repurchase will be accelerated by 12 months upon termination other than
for cause and with respect to all shares upon an acquisition.
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b) Options for Common Stock. In addition, the Company has granted
options for the purchase of shares of its Common Stock to the persons and in the
amounts set forth below:
NUMBER OF
NAME POSITION SHARES VESTING(1)
---- -------- --------- ----------
Xxxx Xxxxx Senior 170,000 Four years; one year cliff;
Programmer quarterly thereafter (with
acceleration of rate prior
to closing of Series B
financing)
Xxxx Xxx Systems 10,000 Immediate
Administrator
Xxxx Xxxxx Graphics 90,000 Quarterly over two years
Designer
Xxx Xxxxxxx Senior 200,000(2) Four years; one year Cliff,
Engineer quarterly thereafter
----------
(1) Vesting of the options to Xx. Xxxxxx and Xx. Xxxxxxx will be
accelerated with respect to 50% of the shares that are unvested at the time of
an acquisition.
(2) Vesting of 20,000 of the shares covered by this option is contingent
on achievement of a certain performance milestone.
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XXXXXX XXXXXX WHITE & XXXXXXXXX
ATTORNEYS
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
August 8, 1996
ClickOver, Inc.
[91604-0960]
(000) 000-0000
FEDERAL EXPRESS
Mr. Xxxx Xxxxxxxx
GKL Corporate Search, Inc.
Park Plaza Professional Center
0000 X Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Amended and Restated
Articles of Incorporation - ClickOver, Inc.
Dear Xxxx:
Enclosed you will find an original and two copies of the Amended and
Restated Articles of Incorporation of ClickOver, Inc. (the "Articles").
Upon the filing of the Articles, please return two (2) certified copies
via overnight delivery and provide telephone confirmation of filing. Your
attention to this matter is greatly appreciated.
Very truly yours,
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Corporate Legal Assistant
Enclosures
cc (w/o enclosures):
Xxxxxxx X. Xxxxxxx, Esq.
EXHIBIT A
24
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CLICKOVER, INC.
Xxxxxx Xxxxxxxxx and Thi Thumasathit certify that:
1. They are the President and Assistant Secretary, respectively
of ClickOver, Inc., a California corporation.
2. The Articles of Incorporation of this Corporation are hereby
amended and restated in full to read as follows:
FIRST:
The name of this corporation is ClickOver, Inc.
SECOND:
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
THIRD:
This corporation's initial agent for service of process is Xx.
Xxxxxx Xxxxxxxxx, 000 Xxxx Xxxxxx, Xxxx Xxxx, XX 00000.
FOURTH:
This corporation is authorized to issue two classes of shares,
which shall be known as Common Stock and Preferred Stock. The total number of
shares of Common Stock which this corporation is authorized to issue is
12,000,000 and the total number of shares of Preferred Stock which this
corporation is authorized to issue is 3,000,000. The Preferred Stock may be
issued from time to time in one or more series. The Board of Directors is
authorized within the limitations and restrictions stated in these Amended and
Restated Articles of Incorporation (i) to determine and alter the rights,
preferences, privileges, and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock and the number of shares constituting any
such series and the designation thereof, or any of them; and (ii) to increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any such series subsequent to the issue of shares of
that series. If the number of shares of any series of Preferred Stock shall be
so decreased, the shares constituting such decrease shall resume the status
which they had prior to the adoption of the resolution originally fixing the
number of shares of such series. Five Hundred Twenty-Five Thousand
25
(525,000) of the shares of Preferred Stock are designated Series A Preferred
Stock (hereinafter referred to as "Series A Preferred"). The term "Preferred
Stock" shall hereafter refer to the Series A Preferred.
FIFTH:
The relative rights, preferences, privileges and restrictions
granted to or imposed upon the respective classes of the shares of capital stock
or the holders thereof are as follows:
1. Dividend Preference. The holders of Preferred Stock shall be entitled
to receive, pari passu out of funds legally available therefor, dividends on
each outstanding share of Series A Preferred at an annual rate of $0.01 for each
share of Series A Preferred hold by them payable when and as declared by the
Board, in preference and priority to the payment of dividends on any shares of
Common Stock (other than those payable solely in Common Stock or involving the
repurchase of shares of Common Stock from terminated employees, officers,
directors or consultants pursuant to contractual arrangements). After payment of
such dividends, dividends may be declared and paid to the holders of Common
Stock, provided that no dividends shall be paid on the Common Stock at a rate
greater than that paid on any series of Preferred Stock based on the number of
shares of Common Stock into which a series of Preferred is convertible on the
date of the dividend. The dividends payable to the holders of Series A Preferred
shall not be cumulative, and no right shall accrue to the holders of Series A
Preferred by reason of the fact that dividends on the Series A Preferred are not
declared or paid in any previous fiscal year of the corporation, whether or not
the earnings of the corporation in that previous fiscal year were sufficient to
pay such dividends in whole or in part.
2. Liquidation Preference. In the event of any liquidation, dissolution
or winding up of the corporation (a "Liquidation Event"), whether voluntary or
not, distributions to the shareholders of the corporation shall be made in the
following manner:
(a) Prior to and in preference to any distribution to the holders
of Common Stock, the holders of Preferred Stock shall be entitled to receive,
for each share of Series A Preferred, an amount equal to the sum of (i) $0.20
(the "Original Series A Issue Price") and (ii) all declared but unpaid dividends
with respect to such shares of Series A Preferred (collectively, the "Series A
Preference").
(b) If upon the occurrence of a Liquidation Event, the assets and
funds available for distribution among the holders of Preferred Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then the entire assets and funds of the corporation
legally available for distribution shall be distributed ratably among the
holders of the Preferred Stock in proportion to the total preferential amount
owed to each such holder.
(c) After payment has been made to the holders of the Preferred
Stock of the full amounts to which they shall be entitled as aforesaid, the
remaining assets of the corporation available for distribution to shareholders
shall be distributed ratably among the holders of Common stock based on the
number of shares Common Stock held by each.
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(d) A sale of all or substantially all of the assets of the
corporation, or the acquisition of this corporation by another entity by means
of consolidation or merger resulting in the exchange of the outstanding shares
of this corporation for securities or other consideration issued, or caused to
be issued, by the acquiring corporation or corporations and pursuant to which
the shareholders of this corporation (determined prior to such event) do not
hold more than 50% of the voting power of the surviving corporation, shall be a
Liquidation Event within the meaning of this Section 2.
(e) Each holder of Preferred Stock shall be deemed to have
consented, for purposes of Sections 502, 503, and 506 of the California
Corporations Code, to distributions made by the corporation in connection with
the repurchase of shares of Common Stock issued to or held by officers,
directors or employees of, or consultants to, the corporation or its
subsidiaries upon termination of their employment or services pursuant to
agreements (whether now existing or hereafter entered into) providing for the
right of said repurchase between the corporation and such persons.
(f) The value of securities and property paid or distributed
pursuant to this Section 2 shall be computed at fair market value at the time of
payment to the corporation or at the time made available to shareholders, all as
determined by the Board of Directors in the good faith exercise of its
reasonable business judgment, provided that (i) if such securities are listed on
any established stock exchange or a national market system, their fair market
value shall be the closing sales price for such securities as quoted on such
system or exchange (or the largest such exchange) for the date the value is to
be determined (or if there are no sales for such date, then for the last
preceding business day on which there were sales), as reported in the Wall
Street Journal or similar publication, and (ii) if such securities are regularly
quoted by a recognized securities dealer but selling prices are not reported,
their fair market value shall be the mean between the high bid and low asked
prices for such securities on the date the value is to be determined (or if
there are no quoted prices for such date, then for the last preceding business
day on which there were quoted prices).
(g) Nothing hereinabove set forth shall affect in any way the
right of each holder of Preferred Stock to convert such shares at any time and
from time to time into Common Stock in accordance with Section 4 hereof.
3. Voting Rights. Except as otherwise required by law or hereunder, the
holder of each share of Common Stock issued and outstanding shall have one vote
and the holder of each share of Preferred Stock shall be entitled to the number
of votes equal to the number of shares of Common Stock into which such share of
Preferred Stock could be converted at the record date for determination of the
shareholders entitled to vote on such matters, or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders is solicited, such votes to be counted together with all other
shares of stock of the company having general voting power and not separately as
a class. Fractional votes by the holders of Preferred Stock shall not, however,
be permitted and any fractional voting rights shall (after aggregating all
shares into which shares of Preferred Stock held by each holder could be
converted) be rounded
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to the nearest whole number. Holders of Common Stock and Preferred Stock shall
be entitled to notice of any shareholders' meeting in accordance with the Bylaws
of the corporation.
4. Conversion Rights. The holders of Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share at the office of the corporation or any transfer agent
for such Series A Preferred. Each share of Series A Preferred shall be
convertible into such number of fully-paid and non-assessable shares of Common
Stock as is determined by dividing the Original Series A Issue Price (as set
forth in Section 2(a) hereof) by the Series A Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. The initial Series A
Conversion Price shall be $0.20. The initial Series A Conversion Price shall be
subject to adjustment as hereinafter provided.
(b) Automatic Conversion. Each share of Series A Preferred shall
automatically be converted into shares of Common Stock at the Series A
Conversion Price then in effect upon the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the securities Act of 1933, as amended, covering the offer and sale of
Common Stock for the account of the corporation to the public at an aggregate
offering price to the public of greater than $10,000,000 (the "Automatic
Conversion"). In the event of the Automatic Conversion of the Preferred Stock
upon a public offering as aforesaid, the person(s) entitled to receive the
Common Stock issuable upon such conversion of Preferred Stock shall not be
deemed to have converted such Preferred Stock until immediately prior to the
closing of such sale of securities.
(c) Mechanics of Conversion. No fractional shares of Common Stock
shall be issued upon conversion of Preferred Stock. In lieu of any fractional
shares to which the holder would otherwise be entitled, the corporation shall
pay cash equal to such fraction multiplied by the then effective Conversion
Price for such series. Before any holder of Preferred Stock shall be entitled to
convert the same into full shares of Common Stock and to receive certificates
therefor, he shall surrender the certificate or certificates therefor, duly
endorsed, at the office of the corporation or of any transfer agent for the
Preferred Stock, and shall give written notice to the corporation at such office
that he elects to convert the same; provided, however, that in the event of an
automatic conversion pursuant to section 4(b), the outstanding shares of
Preferred Stock shall be converted automatically without any further action by
the holders of such shares and whether or not the certificates representing such
shares are surrendered to the corporation or its transfer agent, and provided
further that the corporation shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such automatic conversion
unless the certificates evidencing such shares of Preferred Stock are either
delivered to the corporation or its transfer agent as provided above, or the
holder notifies the corporation or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement satisfactory to
the corporation to indemnify the corporation from any loss incurred by it in
connection with such certificates. The corporation shall, as soon as practicable
after such delivery, or such agreement and indemnification in the case of a lost
certificate, issue and deliver at such office to such holder of Preferred Stock,
a certificate or certificates for the number of
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shares of Common Stock to which he shall be entitled as aforesaid and a check
payable to the holder in the amount of any cash amounts payable as the result of
a conversion into fractional shares of Common Stock. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of such surrender of the shares of Preferred Stock to be converted, or in the
case of Automatic Conversion on the date of closing of the offering, and the
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date.
(d) Adjustments to Conversion Price.
(i) Adjustments for Dividends, Splits, Subdivisions,
Combinations or Consolidation of Common Stock. In the event the outstanding
shares of Common Stock shall be increased by stock dividend payable in Common
Stock, stock split, subdivision or other similar transaction into a greater
number of shares of Common Stock, the Series A Conversion Price then in effect
shall, concurrently with the effectiveness of such event, be decreased in
proportion to the percentage increase in the outstanding number of shares of
Common Stock. In the event the outstanding shares of Common Stock shall be
decreased by reverse stock split, combination, consolidation, or other similar
transaction into a lesser number of shares of Common Stock, the Series A
Conversion Price then in effect shall, concurrently with the effectiveness of
such event, be increased in proportion to the percentage decrease in the
outstanding number of shares of Common Stock.
(ii) Adjustments for Other Distributions. In the event the
corporation at any time are from time to time makes, or fixes a record date for
the determination of holders of Common Stock entitled to receive any
distribution payable in securities of the corporation other than shares of
Common Stock and other than as otherwise adjusted in this Section 4, then and in
each such event provision shall be made so that the holders of Preferred Stock
shall receive upon conversion thereof, in addition to the number of shares of
Common Stock receivable thereupon, the amount of securities of the corporation
which they would have received had their Preferred Stock been converted into
Common Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the date of conversion,
retained such securities receivable by them as aforesaid during such period,
subject to all other adjustments called for during such period under this
Section 4 with respect to the rights of the holders of the Preferred Stock.
(iii) Adjustments for Reclassification, Exchange and
Substitution. If the Common Stock issuable upon conversion of the Preferred
Stock shall be changed into the same or a different number of shares of any
other class or classes of stock, whether by capital reorganization,
reclassification, or otherwise (other than a subdivision or combination of
shares provided for above), the Series A Conversion Price then in effect shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted such that the Preferred Stock shall be convertible
into, in lieu of the number of shares of Common Stock which the holders would
otherwise have been entitled to receive, a number of shares of such other class
or classes of stock equivalent to the number of shares of Common Stock that
would
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have been subject to receipt by the holders upon conversion of such Series A
Preferred immediately before that change.
(e) No Impairment. Except as provided in Section 5, the
corporation will not, by amendment of its Articles of Incorporation or through
any reorganization, transfer of assets, consolidation, merger, dissolution,
issue, or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the corporation but will at all times in good faith
assist in the carrying out of all the provisions of this Section 4 and in the
taking of all such action as may be necessary or appropriate in order to protect
the conversion rights of the holders of the Series A Preferred against
impairment.
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Series A Conversion Price pursuant to this
Section 4, the corporation at its expense shall promptly compute such adjustment
or readjustment in accordance with the terms hereof and furnish to each holder
of Preferred Stock a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment is
based. The corporation shall, upon the written request at any time of any holder
of Preferred Stock, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Price at the time in effect, and (iii) the number of shares of Common
Stock and the amount, if any, of other property which at the time would be
received upon the conversion of the Preferred Stock.
(g) Notices of Record Date. In the event that this corporation
shall propose at any time:
(i) to declare any dividend or distribution upon its
Common Stock, whether in cash, property, stock or other securities, whether or
not a regular cash dividend and whether or not out of earnings or earned
surplus;
(ii) to offer for subscription pro rata to the holders of
any class or series of its stock any additional shares of stock of any class or
series or other rights;
(iii) to effect any reclassification or recapitalization
of its Common Stock outstanding involving a change in the Common Stock; or
(iv) to merge or consolidate with or into any other
corporation, or sell, lease or convey all or substantially all its property or
business, or to liquidate, dissolve or wind up;
then, in connection with each such event, this corporation shall send to the
holders of the Preferred Stock:
(1) at least 20 days prior written notice of the
date on which a record shall be taken for such dividend, distribution, or
subscription rights (and specifying the
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date on which the holders of Common Stock shall be entitled thereto) or for
determining rights to vote in respect of the matters referred to in (iii) and
(iv) above; and
(2) in the case of the matters referred to in
(iii) and (iv) above, at least 20 days prior written notice of the date when the
same shall take place (and specifying the date on which the holders of Common
Stock shall be entitled to exchange their Common Stock for securities or other
property deliverable upon the occurrence of such event or the record date for
the determination of such holders if such record date is earlier).
Each such written notice shall be delivered personally or given by first
class mail, postage prepaid, addressed to the holders of the Preferred Stock at
the address for each such holder as shown on the books of this corporation.
(h) Issue Taxes. The corporation shall pay any and all issue and
other taxes (other than income taxes) that may be payable in respect of any
issue or delivery of shares of Common Stock on conversion of shares of Preferred
Stock pursuant hereto; provided, however, that the corporation shall not be
obligated to pay any transfer taxes resulting from any transfer requested by any
holder in connection with any such conversion.
(i) Reservation of Stock Issuable Upon Conversion. The
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Preferred Stock such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of Preferred Stock; and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of Preferred Stock, the
corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stork to such number of shares as shall be sufficient for such purpose,
including, without limitation, engaging in best efforts to obtain the requisite
shareholder approval of any necessary amendment to its Articles of
Incorporation.
(j) Status of Converted Stock. In case any series of Preferred
Stock shall be converted pursuant to this Section 4, the shares so converted
shall resume the status of authorized but unissued shares of Preferred Stock
undesignated as to series.
5. Covenants. In addition to any other rights provided by law, this
corporation shall not, without first obtaining the affirmative vote or written
consent of the holders of more than 50% of the outstanding shares of Preferred
Stock:
(a) amend or repeal any provision of, or add any provision to,
this corporation's Articles of Incorporation if such action would materially and
adversely alter or change the preferences, rights, privileges, or powers of, or
the restrictions provided for the benefit of, the Preferred Stock;
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(b) authorize or issue shares of any class or series of stock
having any preference or priority as to dividends or redemption rights,
liquidation preferences, conversion rights or voting rights, superior to any
preference or priority of the Preferred Stock;
(c) reclassify any shares of capital stock of this corporation
into shares having any preference or priority as to dividends or redemption
rights, liquidation preferences, conversion rights or voting rights, superior to
any preference or priority of the Preferred Stock; or
(d) merge or consolidate the corporation with any other
corporation or corporations (other than with a wholly-owned subsidiary of the
corporation) or effect any other transaction or series of related transactions,
in either case resulting in the shareholders of the corporation (determined
prior to such event) holding 50% or less in interest of the outstanding voting
securities of the surviving corporation, or sell, lease, assign, transfer or
convey all or substantially all of the assets of the corporation.
6. Residual Rights. All rights accruing to the outstanding shares of the
corporation not expressly provided for to the contrary herein shall be vested in
the Common Stock.
SIXTH:
The liability of the directors of this corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law. This
corporation is also authorized, to the fullest extent permissible under
California law, to indemnify its agents (as defined in Section 317 of the
California Corporations Code), whether by bylaw, agreement or otherwise, for
breach of duty to this corporation and its shareholders in excess of that
expressly permitted by Section 317 and to advance defense expenses to its agents
in connection with such matters as they are incurred. If, after the effective
date of this Article Sixth, California law is amended in a manner which permits
a corporation to limit the monetary or other liability of its directors or to
authorize indemnification of, or advancement of such defense expenses to, its
directors or other persons, in any such case to a greater extent than is
permitted on such effective date, the references in this Article to "California
law" shall to that extent be deemed to refer to California law as so amended.
3. The foregoing Amendment and Restatement of Articles of Incorporation
has been duly approved by the Board of Directors.
4. The foregoing Amendment and Restatement of Articles of Incorporation
has been duly approved by the required vote of shareholders in accordance with
Section 902 of the Code. The total number of outstanding shares of the
Corporation is 4,103,408. The number of shares voting in favor of the amendment
equaled or exceeded the vote required the percentage vote was more than 50%.
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We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: July 31, 1996
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx, President
/s/ Thi Thumasathit
------------------------------------
Thi Thumasathit,
Assistant Secretary
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CLICKOVER, INC.
EMPLOYEE CONFIDENTIAL INFORMATION AND
INVENTIONS AGREEMENT
In partial consideration and as a condition of my employment or
continued employment with ClickOver, Inc., a California corporation (which
together with any parent, subsidiary, affiliate, or successor is hereinafter
referred to as the "Company" or "ClickOver") and effective as of the date that
my employment with the Company first commenced, I hereby agree as follows:
1. NONCOMPETITION
During my employment with the Company, I will perform for the
Company such duties as it may designate from time to time and will devote my
full time and best efforts to the business of the Company and will not, without
the prior written approval of (i) an officer of the company if I am not an
executive officer of the Company or (ii) the Board of Directors of the Company
if I am an executive officer of the Company, (a) engage in any other
professional employment or consulting, or (b) directly or indirectly participate
in or assist any business which is a current or potential supplier, customer, or
competitor of the Company.
2. CONFIDENTIALITY OBLIGATION
I will hold all ClickOver Confidential Information in confidence
and will not disclose, use, copy, publish, summarize, or remove from ClickOver's
premises any Confidential Information, except (a) as necessary to carry out my
assigned responsibilities as a ClickOver employee, and (b) after termination of
my employment, only as specifically authorized in writing by an officer of
ClickOver. "Confidential Information" is all information related to any aspect
of ClickOver's business which is either information not known by actual or
potential competitors of the Company or is proprietary information of the
Company, whether of a technical nature or otherwise. Confidential Information
includes inventions, ideas, designs, computer programs, circuits, schematics,
formulas, algorithms, trade secrets, works of authorship, mask works,
developmental or experimental work, processes, techniques, improvements,
know-how, data, financial information and forecasts, product plans, marketing
plans and strategies, and customer lists.
3. INFORMATION OF OTHERS
I will safeguard and keep confidential the proprietary
information of customers, vendors, consultants, and other parties with which
ClickOver does business to the same extent as if it were ClickOver Confidential
Information. I will not, during my employment with the Company or otherwise, use
or disclose to the Company any confidential, trade secret, or other proprietary
information or material of any previous employer or other person, and I will not
bring onto the Company's premises any unpublished document or any other property
belonging to any former employer without the written consent of that former
employer.
EXHIBIT 7.2
34
4. COMPANY PROPERTY
All papers, records, data, notes, drawings, files, documents,
samples, devices, products, equipment, and other materials, including copies,
relating to ClickOver's business that I possess or create as a result of my
ClickOver employment, whether or not confidential, are the sole and exclusive
property of ClickOver. In the event of the termination of my employment, I will
promptly deliver all such materials to ClickOver and will sign and deliver to
the Company the "Termination Certificate" attached hereto as Exhibit A.
5. OWNERSHIP OF INVENTIONS
All inventions, ideas, designs, circuits, schematics, formulas,
algorithms, trade secrets, works of authorship, mask works, developments,
processes, techniques, improvements, and related know-how which result from work
performed by me, alone or with others, on behalf of ClickOver or from access to
ClickOver Confidential Information or property whether or not patentable,
copyrightable, or qualified for mask work protection (collectively "Inventions")
shall be the property of ClickOver, and, to the extent permitted by law, shall
be "works made for hire." I hereby assign and agree to assign to ClickOver or
its designee, without further consideration, my entire right, title, and
interest in and to all Inventions (other than those which qualify under Section
2870 of the California Labor Code), including all rights to obtain, register,
perfect, and enforce patents, copyrights, mask work rights, and other
intellectual property protection for Inventions. I will disclose promptly and in
writing to the individual designated by ClickOver or to my immediate supervisor
all Inventions which I have made or reduced to practice. During my employment
and for four years after, I will assist ClickOver (at its expense) to obtain and
enforce patents, copyrights, mask work rights, and other forms of intellectual
property protection on Inventions.
6. EXCLUDED INVENTIONS
Attached as Schedule 6 is a list of all inventions, improvements,
and original works of authorship which I desire to exclude from this Agreement,
each of which has been made or reduced to practice by me prior to my employment
by ClickOver. I will not incorporate any such items in any works of authorship
or other Inventions that result from work performed by me for the company. If no
list is attached to this Agreement, there are no inventions to be excluded at
the time of my signing of this Agreement. I understand that this Agreement
requires disclosure, but not assignment, of any invention that qualifies under
Section 2870 of the California Labor Code, which is set forth in full in Exhibit
C and reads in pertinent part as follows:
"(a) Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to
an invention that the employee developed entirely an his or her
own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those
inventions that either:
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(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual
or demonstrably anticipated research or development of the
employer, or
(2) Result from any work performed by the
employee for the employer."
7. PATENT APPLICATIONS
If ClickOver files an original United States patent application
covering any invention of which I am a named inventor, I will receive an
inventor's fee of $100.
8. PRIOR CONTRACTS
I represent that there are no other contracts to assign
inventions that are now in existence between any other person or entity and me.
I further represent that I have no other employments, consultancies, or
undertakings which would restrict and impair my performance of this Agreement.
9. AGREEMENTS WITH THE UNITED STATES GOVERNMENT AND OTHER THIRD PARTIES
I acknowledge that the Company from time to time may have
agreements with other persons or with the United States Government or agencies
thereof which impose obligations or restrictions on the Company regarding
Inventions made during the course of work under such agreements or regarding the
confidential nature of such work. I agree to be bound by all such obligations or
restrictions and to take all action necessary to discharge the obligations of
the Company thereunder.
10. NO SOLICITATION
During the term of my employment with the Company, and for a
period of one year following its termination for any reason, I will not, without
the Company's express written consent, either on my own behalf or on behalf of
another: (i) contact or solicit employees of the Company for the purpose of
hiring them; or (ii) solicit the business of any client, customer, or licensee
of the Company. I acknowledge that the provisions of this Section 10 are
reasonable and necessary measures designed to protect the Confidential
Information of the Company.
11. NO EMPLOYMENT AGREEMENT
I agree that unless specifically provided in another writing
signed by me and an officer of the Company, my employment by the Company is not
for a definite period of time. Rather, my employment relationship with the
Company is one of employment at will and my continued employment is not
obligatory by either myself or the Company.
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12. MISCELLANEOUS
12.1 Governing Law
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California excluding those laws that
direct the application of the laws of another jurisdiction.
12.2 Enforcement
If any provision of this Agreement shall be determined to
be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Agreement shall be deemed
valid and enforceable to the full extent possible.
12.3 Injunctive Relief; Consent to Jurisdiction
I acknowledge and agree that damages will not be an
adequate remedy in the event of a breach of any of my obligations under this
Agreement. I therefore agree that the Company shall be entitled (without
limitation of any other rights or remedies otherwise available to the Company)
to obtain an injunction from any court of competent jurisdiction prohibiting the
continuance or recurrence of any breach of this Agreement. I hereby submit
myself to the jurisdiction and venue of the courts of the State of California
for purposes of any such action. I further agree that service upon me in any
such action or proceeding may be made by first class mail, certified or
registered, to my address as last appearing on the records of the Company.
12.4 Arbitration
I further agree that the Company, at its option, may elect
to submit any dispute or controversy arising out of this Agreement for final
settlement by arbitration conducted in Santa Xxxxx County in accordance with the
then existing rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrators shall be specifically enforceable and may
be entered in any court having jurisdiction thereof.
12.5 Attorneys' Fees
If any party seeks to enforce its rights under this
Agreement by legal proceedings or otherwise, the non-prevailing party shall pay
all costs and expenses of the prevailing party.
12.6 Waiver
The waiver by the Company of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or any other provision hereof.
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12.7 Binding Effect
This Agreement shall be binding upon and shall inure to
the benefit of the successors, executors, administrators, heirs,
representatives, and assigns of the parties.
12.8 Headings
The Section headings herein are intended for reference and
shall not by themselves determine the construction or interpretation of this
Agreement.
12.9 Entire Agreement; Modifications
This Employee Confidential Information and Inventions
Agreement contains the entire agreement between the Company and the undersigned
employee concerning the subject matter hereof and supersedes any and all prior
and contemporaneous negotiations, correspondence, understandings, and
agreements, whether oral or written, respecting that subject matter. All
modifications to this Agreement must be in writing and signed by the party
against whom enforcement of such modification is sought.
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IN WITNESS WHEREOF, I have executed this Employee Confidential
Information and Inventions Agreement as of the___ day of __________________,
1996.
-----------------------------------------
Name:
------------------------------------
Please Print
RECEIPT ACKNOWLEDGED:
CLICKOVER, INC.
By:
------------------------------
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EXHIBIT A
CLICKOVER, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed to
return, any papers, records, data, notes, drawings, files, documents, samples,
devices, products, equipment, and other materials, including reproductions of
any of the aforementioned items, belonging to ClickOver, Inc., its subsidiaries,
affiliates, successors, or assigns (together, the "Company").
I further certify that I have complied with all the terms of the Company's
Confidential Information and Inventions Agreement signed by me, including the
reporting of any inventions and original works of authorship (as defined
therein) conceived or made by me (solely or jointly with others) covered by that
agreement.
I further agree that, in compliance with the Confidential Information and
Inventions Agreement, I will hold in confidence and will not disclose, use,
copy, publish, or summarize any Confidential Information (as defined in the
Confidential Information and Inventions Agreement) of the Company or of any of
its customers, vendors, consultants, and other parties with which it does
business.
Date: ____________________
____________________________________
Employee's Signature
____________________________________
Type/Print Employee's Name
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EXHIBIT B
CLICKOVER, INC.
(Excluded Inventions, Improvements, and
Original Works of Authorship)
Identifying Number
Title Date Or Brief Description
----- ---- --------------------
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EXHIBIT C
CLICKOVER, INC.
California Labor Code Section 2870. Application of provision providing that
employee shall assign or offer to assign rights in invention to employer.
(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that
the employee developed entirely on his or her own time without using the
employer's equipment, supplies, facilities, or trade secret information
except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require
an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against
the public policy of this state and is unenforceable.
Amended Stats 1986 ch 647 Section 5.
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CLICKOVER, INC.
FOUNDERS' RESTRICTED STOCK PURCHASE AGREEMENT
THIS FOUNDERS' RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is
made and entered into as of this 11th day of July, 1996 (the "Effective Date")
between ClickOver, Inc., a California corporation (the "Company"), and 1-
("Founder").
1. Purchase of Shares.
Subject to the terms and conditions of this Agreement and the
Contribution to Controlled Corporation Agreement attached hereto as Exhibit A,
Founder is purchasing 2- (3-) shares of the Company's no par value Common Stock
(the "Shares") from the Company, and the Company hereby sells the Shares to
Founder for the consideration set forth in Exhibit A.
2. Market Standoff.
Founder agrees that if so requested by the Company or any
representative of the underwriters in connection with any registration of the
offering of any securities of the Company under the Securities Act of 1933, as
amended (the "Securities Act"), Founder shall not sell or otherwise transfer any
Shares or other securities of the Company during such period (not to exceed 180
days) following the effective date of a registration statement of the Company
filed under the Securities Act as may be requested by the representative of the
underwriters; provided, however, that such restriction shall apply only to the
first two registration statements of the Company to become effective under the
Securities Act which include securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Act. The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of each such period.
3. Vesting; Company Right to Repurchase; Acceleration.
3.1 Vesting. As of the Effective Date, none of the Shares will be
deemed "Vested"; rather all of the Shares will be deemed "Unvested." Although
all of the Shares will entitle the Founder to all of the rights accorded to a
holder of Common Stock of the Company, those Shares which are Unvested remain
subject to repurchase by the Company pursuant to Section 3.2 below; such
Unvested Shares will become Vested on the following schedule: 4- of the Shares
will become Vested 6-; and, thereafter, 5- additional Shares will become Vested,
on a cumulative basis, every three months thereafter, such that as of 7-, all of
the Shares will have become Vested.
3.2 Company Right to Repurchase Unvested Shares. In the event
that Founder is no longer employed or retained by the Company or any of its
affiliates as either a director, an officer or an employee, or in any such
capacity, for any reason whatsoever (whether due to death, total disability,
voluntary resignation, involuntary termination or any other reason), then for a
period of 90 days after the date of such event the Company will have an
assignable right, but not an obligation, to repurchase any Shares owned by
Founder that remain Unvested as
EXHIBIT 5.6
43
of such termination event (after giving effect to any accelerated vesting
provided in Section 3.3 below) for a price equal to $0.01 per share, subject to
appropriate adjustment for stock splits, stock dividends and combinations;
provided that if the Company determines that exercise of its right to repurchase
could cause the Company to cease to qualify as a "small business" under Section
1202 of the Internal Revenue Code as to prior or subsequent stock issuances by
the Company and if the Company so notifies Founder within such 90-day period,
the Company may (a) exercise its right of repurchase set forth in this Section 3
by written notice to Founder at any time within one year after the date on which
Founder ceases to serve and provided further, that if the Company so notifies
Founder, during the period between the date of receipt of such notice and the
earlier of exercise of the Company's right to repurchase and expiration of such
one-year period, Founder hereby grants the Chairman of the Board (or in the
absence of a Chairman, the Chief Executive Officer) of the Company, with full
power of substitution, an irrevocable proxy to vote such shares (or execute a
written consent) on all matters submitted to a vote of shareholders, or (b)
assign all or a portion of its right as determined by the Board of Directors. If
the Company (or its assignees) exercises its right of repurchase, Founder shall,
if necessary, endorse and deliver to the Company (or its assignees) the stock
certificates representing the Shares being repurchased, and the Company (or its
assignees) shall pay Founder the total repurchase price in cash upon such
delivery. Founder shall cease to have any rights with respect to such
repurchased Shares immediately upon receipt of the repurchase price.
3.3 Acceleration of Vesting upon Certain Events. Notwithstanding
the Vesting provisions set forth in Section 3.1 above:
In the event of a Sale of the Company, then 100% of the Shares
that are Unvested as of the consummation of such Sale will become Vested
immediately prior to such consummation. For such purposes, the term "Sale of the
Company" means any sale, lease or disposition of all or substantially all of the
assets of the Company, or any merger or consolidation of the Company with or
into any other corporation or corporations or other entity, or any other
corporate reorganization where the shareholders of the Company immediately prior
to such event do not retain at least 50% of the voting power of and interest in
the successor entity, or any transaction or series of related transactions in
which more than 50% of the Company's voting power is transferred.
3.4 Repurchase Payment. If, at the time of repurchase, any notes
are outstanding which represent any portion of the purchase price of the Shares,
the Repurchase Price shall be paid first by cancellation of any obligation for
accrued but unpaid interest under such notes, next by cancellation of principal
under such notes, and finally by payment of cash.
4. Right of First Refusal.
The Shares shall be subject to a right of first refusal by the
Company in the event that Founder or any transferee of the Shares proposes to
sell, pledge, or otherwise transfer the Shares or any interest in the Shares to
any person or entity. Any holder of the Shares desiring to transfer the Shares
or any interest in the Shares shall give a written notice to the Company
describing the proposed transfer, including the number of Shares proposed to be
transferred, the price and terms at which such Shares are proposed to be
transferred, and the name and address of
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the proposed transferee. Unless otherwise agreed by the Company and the holder
of such Shares, repurchases by the Company under this Section shall be at the
proposed price and terms, including the number of Shares to be repurchased,
specified in the notice to the Company. The Company's rights under this Section
shall be freely assignable. If the Company fails to exercise its right of first
refusal within 30 days from the date on which the Company receives the
shareholder's notice, the shareholder may, within the next 90 days, conclude a
transfer to the proposed transferee of the exact number of Shares covered by
that notice on terms not more favorable to the transferee than those described
in the notice. Any subsequent proposed transfer shall again be subject to the
Company's right of first refusal. If the Company exercises its right of first
refusal, the shareholder shall endorse and deliver to the Company the stock
certificates representing the Shares being repurchased and the Company shall
promptly pay the shareholder the total repurchase price. The holder of the
Shares being repurchased shall cease to have any rights with respect to such
Shares immediately upon receipt of the repurchase price. The right of first
refusal set forth in this Section shall terminate upon the earlier of (i)
consummation of an underwritten public offering of the company's Common Stock
registered under the Securities Act, or (ii) registration of the Company's
Common Stock under the Securities Exchange Act of 1934, as amended.
5. Representations and Acknowledgements of Founder.
Founder hereby represents, warrants, acknowledges, and agrees
that:
(a) Investment. Founder is acquiring the Shares for Founder's own
account and not with a view to or for sale in connection with any distribution
of the Shares. Founder understands that he must bear the economic risk of the
investment for an indefinite period of time because the Shares have not been
registered under the Securities Act or qualified under the California Corporate
Securities Law of 1968 or the securities laws of any other state.
(b) Investment Experience: Pre-existing Relationship. Founder has
(i) a pre-existing personal or business relationship with the Company or one or
more of its directors that is of a nature and duration which enable him to be
aware of the character, business acumen, and general business and financial
circumstances of the Company or the director(s) with whom such relationship
exists and (ii) such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the purchase of the
Shares.
(c) Limited Operating History. Founder is aware that the Company
has only recently been formed and has conducted only limited business activities
to date.
(d) Speculative Investment. Founder's investment in the Company
represented by the Shares is highly speculative in nature and is subject to a
high degree of risk of loss in whole or in part; the amount of such investment
is within Founder's risk capital means and is not so great in relation to
Founder's total financial resources as would jeopardize the personal financial
needs of Founder or Founder's family in the event such investment were lost in
whole or in part.
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(e) Tax Advice. The Company has made no warranties or
representations to Founder with respect to the income tax consequences of the
transactions contemplated by this Agreement and Founder is in no manner relying
on the Company or its representatives for an assessment of any tax consequences
related to ownership, purchase, or disposition of the Shares. Founder shall
assume full responsibility for all such consequences and for the preparation and
filing of all tax returns and elections which may or must be filed in connection
with such Shares.
(f) Unregistered Securities.
(i) Founder must bear the economic risk of investment for
an indefinite period of time because the Shares have not been registered under
the Securities Act and therefore cannot and will not be sold unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. The Company has made no agreements, covenants, or
undertakings whatsoever to register any of the shares under the Securities Act.
The Company has made no representations, warranties, or covenants whatsoever as
to whether any exemption from the Securities Act, including without limitation
any exemption for limited sales in routine brokers' transactions pursuant to
Rule 144 under the Securities Act, will become available and any such exemption
pursuant to Rule 144, if available at all, will not be available unless: (x) a
public trading market then exists in the Company's Common Stock, (y) adequate
information as to the Company's financial and other affairs and operations is
then available to the public, and (z) all other terms and conditions of Rule 144
have been satisfied. Founder understands that the resale provisions of Rule 701
will not apply until 90 days after the Company becomes subject to the reporting
obligations of the securities Exchange Act of 1934 (typically upon the effective
date of a public offering).
(ii) Transfer of the Shares has not been registered or
qualified under any applicable state law regulating securities and therefore the
Shares cannot and will not be sold unless they are subsequently registered or
qualified under any such law or an exemption therefrom is available. The Company
has made no agreements, covenants, or undertakings whatsoever to register or
qualify any of the Shares under any such law. The Company has made no
representations, warranties, or covenants whatsoever as to whether any exemption
from any such law will become available.
(g) Public Trading. The Common Stock is not presently
publicly traded, and the Company has made no representation, covenant, or
agreement as to whether any such market for the Common Stock will develop.
6. Legends.
Stock certificates evidencing the Shares may bear such
restrictive legends as the Company and the Company's counsel deem necessary or
advisable under applicable law or pursuant to this Agreement, including without
limitation, the following legends:
"The Securities represented hereby may be subject to a
right of repurchase by the Company pursuant to the provisions of
the Restricted Stock Purchase Agreement between the Company and
the original purchaser of such Securities,
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should the person initially issued these Securities cease to be
employed by and/or render services as a consultant to the
Company or any affiliate thereof, and such securities may not be
sold or otherwise transferred if such securities are subject to
such right of repurchase."
"The Securities represented hereby are subject to
restrictions on transfer for a period of 180 days following the
effective date of a registration statement under the Securities
Act of 1933, as amended, for an offering of the Company's
securities pursuant to the market standoff provisions of the
Restricted Stock Purchase Agreement between the Company and the
original purchaser of such securities."
"The Securities represented hereby are subject to a right
of first refusal in favor of the Company pursuant to a Restricted
Stock Purchase Agreement between the Company and the original
purchaser of such Securities, and may not be sold or otherwise
transferred except in compliance with the terms of such right of
first refusal."
"The Securities represented hereby have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"). Such Securities may not be transferred unless
a Registration Statement under the Securities Act is in effect as
to such transfer or, in the opinion of counsel for the Company,
such transfer may be made pursuant to Rule 144 or registration
under the Securities Act is otherwise unnecessary in order for
such transfer to comply with the Securities Act."
7. Binding Effect.
Subject to the limitations set forth in this Agreement, this
Agreement shall be binding upon, and inure to the benefit of, the executors,
administrators, heirs, legal representatives, successors, and assigns of the
parties hereto.
8. Taxes.
Founder shall execute and deliver to the Company with this
executed Agreement a copy of the Acknowledgment and Statement of Decision
Regarding Election Pursuant to Section 83(b) of the Internal Revenue Code (the
"Acknowledgment") attached hereto as Exhibit 8A and a copy of the Election
Pursuant to Section 83(b) of the Code, attached hereto as Exhibit 8B, if Founder
has indicated in the Acknowledgment his or her decision to make such an
election. Founder should consult his tax advisor to determine if there is a
comparable election to file in the state of his or her residence and whether
such filing is desirable under the circumstances.
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9. Damages.
Founder shall be liable to the Company for all costs and damages,
including incidental and consequential damages, resulting from a disposition of
shares which is not in conformity with the provisions of this Agreement.
10. Governing Law.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California excluding those laws that direct the
application of the laws of another jurisdiction.
11. Notices.
All notices and other communications under this Agreement shall
be in writing. Unless and until Founder is notified in writing to the contrary,
all notices, communications, and documents directed to the Company and related
to the Agreement, if not delivered by hand, shall be mailed, addressed as
follows:
ClickOver, Inc.
000 Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: President
Unless and until the Company is notified in writing to the contrary, all
notices, communications, and documents intended for Founder and related to this
Agreement, if not delivered by hand, shall be mailed to Founder's last known
address as shown on the Company's books. Notices and communications shall be
mailed by certified mail, return receipt requested, postage prepaid. All
mailings and deliveries related to this Agreement shall be deemed received only
when actually received, if by personal delivery, and two business days after
mailing, if by mail.
12. Entire Agreement.
This Agreement constitutes the entire agreement of the parties
pertaining to the purchase of the Shares by Founder from the Company, and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this
Restricted Stock Purchase Agreement as of the date and year first above written.
CLICKOVER, INC.
By:______________________________________
Xxxxxx Xxxxxxxxx, President
FOUNDER
Founder's spouse indicates by the execution of this Agreement his
or her consent to be bound by the terms herein as to his or her interests,
whether as community property or otherwise, if any, in the Shares hereby
purchased.
_________________________________________
Founder's Spouse
The Certificate for the Shares is to
be registered as follows:
_________________________________________
_________________________________________
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EXHIBIT 5A
ACKNOWLEDGMENT AND STATEMENT
OF DECISION REGARDING ELECTION
PURSUANT TO Section 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned (which term includes the undersigned's spouse), a
purchaser of 3- shares of Common Stock of ClickOver, Inc., a California
corporation (the "Company") and a party to a Restricted Stock Purchase Agreement
with the Company (the "Agreement"), hereby states as follows:
1. The undersigned acknowledges receipt of a copy of the Agreement. The
undersigned has carefully reviewed the Agreement.
2. The undersigned either [check as applicable]:
____ (a) has consulted, and has been fully advised by, the
undersigned's own tax advisor,
_________________________, whose business address
is _________________________________, regarding
the federal, state, and local tax consequences of
purchasing shares under the Agreement, and
particularly regarding the advisability of making
elections pursuant to Section 83(b) of the
Internal Revenue Code of 1986 (the "Code"), and
pursuant to the corresponding provisions, if any,
of applicable state laws; or
_____ (b) has knowingly chosen not to consult such a tax
advisor.
3. The undersigned hereby states that the undersigned has decided [check
as applicable]:
_____ (a) to make an election pursuant to Section 83(b)
of the Code and is submitting to the Company,
together with the undersigned's executed
Agreement, an executed form which is attached as
Exhibit 8B to the Agreement; or
_____ (b) not to make an election pursuant to Section 83(b)
of the Code.
4. Neither the Company nor any subsidiary or representative of the
Company has made any warranty or representation to the undersigned with respect
to the tax consequences of the undersigned's purchase of shares and execution of
the Agreement in connection therewith or of the making or failure to make an
election pursuant to Section 83(b) of the Code or the corresponding provisions,
if any, of applicable state law.
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5. The undersigned is also submitting to the Company, together with the
Agreement, an executed original of an election, if any is made, of the
undersigned pursuant to provisions of state law corresponding to Section 83(b)
of the Code, if any, which are applicable to the undersigned's purchase of
shares under the Agreement.
Date: _______________ __________________________________
Date: _______________ __________________________________
[Spouse]
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