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EXHIBIT 99.5
MAVERICK NETWORKS
(FORMERLY KNOWN AS MAVERICK SEMICONDUCTOR, INC.)
1998 STOCK PLAN
RESTRICTED STOCK PURCHASE AGREEMENT FOR UNVESTED SHARES
Secretary
MAVERICK SEMICONDUCTOR, INC.
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, XX 00000
Dear Sir:
1. Exercise of Purchase Agreement. Effective as of today, ___________,
19__, the undersigned ("PURCHASER") hereby elects to exercise Purchaser's Right
to purchase _________ shares of the Common Stock (the "SHARES") of MAVERICK
SEMICONDUCTOR, INC. (the "COMPANY") under and pursuant to the Company's Stock
Plan, as amended (the "PLAN") and the Notice of Grant dated __________,19__
(together, the "PURCHASE Agreement"). Of these Shares, Purchaser has elected to
purchase __________ of those Shares which have become vested under the Vesting
Schedule set out in the Notice of Grant (the "VESTED SHARES") and __________
Shares which have not yet vested under such schedule (the "UNVESTED SHARES").
The Purchase Price for the Shares shall be $______ per Share, as set out in the
Notice of Grant, for an aggregate Purchase Price of $_________. If purchase is
permitted by promissory note, such purchase shall be made by delivery of
Purchaser's full recourse promissory note in the principal amount of $ in
substantially the form of Exhibit A attached hereto (the "NOTE"). In such case,
as security for the payment of the Note and any renewal or modification thereof,
Purchaser hereby pledges and grants to the Company a security interest in all of
the Shares pursuant to a Security Agreement in substantially the form attached
hereto as Exhibit B (the "SECURITY AGREEMENT"). As part of this pledge,
Purchaser will sign and deliver the escrow documents described in Section 6
below.
2. Representations of Purchaser. Purchaser acknowledges that Purchaser
has received, read and understood the Plan and the Purchase Agreement and agrees
to abide by and be bound by their terms and conditions. Purchaser represents
that Purchaser is purchasing the Shares for Purchaser's own account for
investment and not with a view to, or for sale in connection with, a
distribution of any of such Shares.
3. Compliance with Securities Laws; Federal Restrictions on Transfer.
Purchaser has read and executed the Investment Representation Statement attached
as Exhibit B to the Notice of Grant. Purchaser represents that he or she
understands the matters set forth in the Investment Representation Statement and
that he or she is purchasing the Shares subject to the restrictions and
limitations set forth in that document.
4. Company's Repurchase Option. The Company or its assignee(s) shall
have the Purchase Agreement to repurchase all, but not less than all of the
Unvested Shares on the terms and conditions set forth in this section (the
"REPURCHASE OPTION") if the Purchaser should cease to be employed by the Company
for any reason or no reason, including without limitation death, disability,
voluntary resignation or termination by the Company with or without cause.
(a) Right of Termination Unaffected. Nothing in this Agreement shall be
construed to limit or otherwise affect in any manner whatsoever the right or
power of the Company to terminate Purchaser's employment at any time for any
reason or no reason, with or without cause. Purchaser shall be considered to be
employed by the Company if Purchaser is an officer, director or full-time
employee of the Company or any Parent or Subsidiary of the Company (as defined
in the Plan) or if the Board of Directors determines that Purchaser is rendering
substantial services as a part-time employee, consultant or independent
contractor to
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the Company or any Parent or Subsidiary of the Company (as defined in the Plan).
In case of any dispute, the Board of Directors of the Company shall have
discretion to determine (i) whether Purchaser has ceased to be employed by the
Company and (ii) the date on which the employment relationship ceases (the
"TERMINATION DATE").
(b) Exercise of Repurchase Option. At any time within ninety (90) days
after Purchaser's Termination Date, the Company or its assignee(s) may elect to
repurchase the Unvested Shares purchased pursuant to the Purchase Agreement by
giving Purchaser (or Purchaser's personal representative as the case may be)
written notice of exercise of the Repurchase Option.
(i) Repurchase Price. The Company or its assignee(s) shall have the
option to repurchase from Purchaser all, but not less than all, of the
Unvested Shares (or from Purchaser's personal representative as the case may
be) at the Exercise Price (as defined in the Purchase Agreement), as such
price may be adjusted from time to time to reflect any subsequent stock
dividend, stock split, reverse stock split or recapitalization of the Company
(the "REPURCHASE PRICE").
(ii) Payment of Repurchase Price. The Repurchase Price shall be
payable, at the Purchase Agreement of the Company or its assignee(s), by check
or by cancellation of all or a portion of any outstanding indebtedness of
Purchaser to the Company (or, in the case of repurchase by an assignee, to the
assignee) or any combination thereof. The Repurchase Price shall be paid
without interest within 90 days after the Termination Date.
(iii) Lapse of Repurchase Option. All Unvested Shares held by the
Purchaser shall be released from the Company's Repurchase Option and cease to
be Unvested Shares according to the Vesting Schedule set out in the Notice of
Grant.
5. Right of First Refusal. Before any Shares held by Purchaser or any
transferee (either being sometimes referred to herein as the "HOLDER") may be
sold or otherwise transferred (including transfer by gift or operation of law),
the Company or its assignee(s) shall have a right of first refusal to purchase
the Shares on the terms and conditions set forth in this Section (the "RIGHT OF
FIRST REFUSAL").
(a) Notice of Proposed Transfer. The Holder of the Shares shall deliver
to the Company a written notice (the "SALE NOTICE") stating: (i) the Holder's
bona fide intention to sell or otherwise transfer such Shares; (ii) the name of
each proposed purchaser or other transferee ("PROPOSED TRANSFEREE"); (iii) the
number of Shares to be transferred to each Proposed Transferee; and (iv) the
bona fide cash price or other consideration for which the Holder proposes to
transfer the Shares (the "OFFERED Price"), and the Holder shall offer the Shares
at the Offered Price to the Company or its assignee(s).
(b) Bona Fide Transfer. Within ten (10) days after receipt of the Sale
Notice, the Company shall determine the bona fide nature of the proposed
voluntary transfer and give the Purchaser written notice of the Company's
determination. If the proposed transfer is deemed not to be bona fide, the
Purchaser shall be responsible for providing additional information to the
Company to show the bona fide nature of the proposed transfer. The Company shall
have the right to demand further assurances from the Purchaser and the Proposed
Transferee (in a form satisfactory to the Company) that the Sale Notice fully
and accurately sets forth all of the terms and conditions of the proposed
transfer, including, without limitation, assurance that the Sale Notice fully
and accurately sets forth the consideration actually to be paid for the Shares
and all transactions, directly or indirectly, between the parties which may have
affected the price the Proposed Transferee was willing to pay for the Shares.
(c) Exercise of Right of First Refusal by Company. In the event that
the proposed transfer is deemed to be bona fide, the Company and/or its
assignee(s) may, by giving written notice to the Holder, elect
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to purchase all, but not less than all, of the Shares proposed to be transferred
to any one or more of the Proposed Transferees, at the purchase price determined
in accordance with subsection (c) below. Such written notice may be given within
thirty (30) days after receipt of the Sale Notice.
(d) Purchase Price. The purchase price ("PURCHASE PRICE") for the
Shares purchased by the Company or its assignee(s) under this Section shall be
the Offered Price. If the Offered Price includes consideration other than cash,
the cash equivalent value of the non-cash consideration shall be determined by
the Board of Directors of the Company in good faith.
(e) Payment. Payment of the Purchase Price shall be made, at the
Purchase Agreement of the Company or its assignee(s), by cancellation of all or
a portion of any outstanding indebtedness of the Holder to the Company (or, in
the case of repurchase by an assignee, to the assignee), or by any combination
thereof within sixty (60) days after receipt of the Sale Notice, in the manner
and at the times set forth in such notice.
(f) Holder's Right to Transfer. If all of the Shares proposed in the
Notice to be transferred to a given Proposed Transferee are not purchased by the
Company and/or its assignee(s), then the Holder may sell or otherwise transfer
such Shares to that Proposed Transferee at the Offered Price or at a higher
price, provided that such sale or other transfer is consummated within one
hundred twenty (120) days after the date of the Notice and provided further that
any such sale or other transfer is effected in accordance with any applicable
securities laws and the Proposed Transferee agrees in writing that the
provisions of this Section shall continue to apply to the Shares in the hands of
such Proposed Transferee. If the Shares described in the Notice are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to the Company, and the Company and/or its assignees shall again be
offered the Right of First Refusal before any Shares held by the Holder may be
sold or otherwise transferred.
(g) Exception for Certain Family Transfers. Anything to the contrary
contained in this Section notwithstanding, the transfer of any or all of the
Shares during the Purchaser's lifetime or on the Purchaser's death by will or
intestacy to the Purchaser's immediate family or a trust for the benefit of the
Purchaser's immediate family shall be exempt from the provisions of this
Section. "Immediate Family" as used herein shall mean spouse, lineal descendant
or antecedent, father, mother, brother or sister. In such case, the transferee
or other recipient shall receive and hold the Shares so transferred subject to
the provisions of this Section, and there shall be no further transfer of such
Shares except in accordance with the terms of this Section.
(h) Transfers Not Subject to the Right of First Refusal. The Right of
First Refusal shall not apply to any transfer or exchange of the shares acquired
pursuant to the exercise of the Purchase Agreement if such transfer is in
connection with a Change in Capitalization, as described in Section 13 of the
Plan. If the consideration received pursuant to such transfer or exchange
consists of stock of a Parent or Subsidiary, such consideration shall remain
subject to the Right of First Refusal unless the provisions of paragraph 5(j)
result in a termination of the Right of First Refusal.
(i) Assignment of the Right of First Refusal. The Company shall have
the right to assign the Right of First Refusal at any time, whether or not the
Purchaser has attempted a transfer, to one or more persons as may be selected by
the Company.
(j) Early Termination of the Right of Refusal. The other provisions of
this paragraph 5 notwithstanding, the Right of First Refusal shall terminate,
and be or no further force and effect upon (i) a merger of the Company or
transaction in which over 80% of the voting power of the Company is transferred
and following which the shareholders of the Company have less than 20% of the
voting power or the resulting or combined entity and shall not apply with
respect to shares sold in such offering or acquisition , or (ii) the existence
of a public market for the class of shares subject to the Right of First
Refusal. A "public market" shall be deemed to exist if (x) such stock is listed
on a national securities exchange (as that term is used in the
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Exchange Act) or (y) such stock is traded on the over-the-counter market and
prices therefor are published daily on business days in a recognized financial
journal.
6. Escrow. As security for the faithful performance of this Agreement,
Purchaser agrees, immediately upon receipt of the certificate(s) evidencing the
Shares, to deliver such certificate(s), together with a stock power in the form
of ATTACHMENT 1 attached hereto, executed by Purchaser and by Purchaser's
spouse, if any (with the date and number of Shares left blank), to the Secretary
of the Company or its designee ("Escrow Holder"), who is hereby appointed to
hold such certificate(s) and stock power in escrow and to take all such actions
and to effectuate all such transfers and/or releases of such Shares as are in
accordance with the terms of this Agreement. Such appointment shall be evidenced
by an executed form of Joint Escrow Instructions, attached hereto as ATTACHMENT
2. Purchaser and the Company agree that Escrow Holder shall not be liable to any
party to this Agreement (or to any other party) for any actions or omissions
unless Escrow Holder is grossly negligent relative thereto. The Escrow Holder
may rely upon any letter, notice or other document executed by any signature
purported to be genuine and may rely on advice of counsel and obey any order of
any court with respect to the transactions contemplated herein. The Shares shall
be released from escrow upon termination of both the Repurchase Purchase
Agreement and the Right of First Refusal; provided, however, that such release
shall not affect the rights of the Company with respect to any pledge of Shares
to the Company.
7. Rights as Shareholder. Subject to the terms and conditions of this
Agreement, Purchaser shall have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Purchaser
delivers full payment of the Exercise Price until such time as Purchaser
disposes of the Shares or the Company and/or its assignee(s) exercises the
Repurchase Purchase Agreement or Right of First Refusal hereunder. Upon such
exercise, Purchaser shall have no further rights as a holder of the Shares so
purchased except the right to receive payment for the Shares so purchased in
accordance with the provisions of this Agreement, and Purchaser shall forthwith
cause the certificate(s) evidencing the Shares so purchased to be surrendered to
the Company for transfer or cancellation.
8. Tax Consequences.
(a) Tax Consultation. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
(B) Section 83(b) Election For Unvested Shares. If the Right being
exercised is for unvested shares, Purchaser hereby acknowledges that Purchaser
has been informed that, with respect to the purchase of unvested shares, unless
an election is filed by the Purchaser with the Internal Revenue Service within
thirty (30) days of the purchase of the Shares, electing pursuant to Section
83(b) of the Internal Revenue Code of 1986, as amended (and similar state tax
provisions if applicable) to be taxed currently for income tax purposes on any
difference between the purchase price of the Shares and their fair market value
on the date of purchase, the Purchaser will be required to include in income an
amount equal to the excess, if any, of the fair market value of the Shares, at
the time the Company's Repurchase Option lapses over the purchase price for such
Shares. Purchaser represents that Purchaser has consulted any tax consultant(s)
Purchaser deems advisable in connection with the purchase of the Shares or the
filing of the Election under Section 83(b) and similar tax provisions. A form of
Election Under Section 83(b) is attached hereto as ATTACHMENT 3 for reference.
PURCHASER HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING
ANY TAXES RESULTING FROM SUCH ELECTION OR THE LAPSE OF THE REPURCHASE
RESTRICTIONS ON THE SHARES.
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9. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Purchaser understands and agrees that the Company shall
cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS
IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND RIGHT OF REPURCHASE AND RIGHT OF FIRST REFUSAL
PURCHASE AGREEMENTS HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE
EXERCISE NOTICE AND RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE
PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS, RIGHT OF
REPURCHASE AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE
SHARES.
Purchaser understands that transfer of the Shares may be restricted by
Section 260.141.11 of the Rules of the California Corporations Commissioner. In
the event such a restriction is required by the state of California, a copy of
the Commissioner's Rules will be furnished to Purchaser and an additional legend
may be required on the Shares.
(i) Stop-Transfer Notices. Purchaser agrees that, in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(ii) Refusal to Transfer. The Company shall not be required (A) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (B) to treat as owner of
such Shares or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such Shares shall have been so transferred.
10. Market Standoff Agreement. Purchaser hereby 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
1933 Act, Purchaser shall not sell or otherwise transfer any Shares or other
securities of the Company during the one hundred eighty (180) day period
following the effective date of a registration statement of the Company filed
under the 1933 Act; provided, however, that such restriction shall only apply to
the first registration statement of the Company to become effective under the
1933 Act which include securities to be sold on behalf of the Company to the
public in an underwritten public offering under the 1933 Act. The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such one hundred eighty (180) day
period.
11. Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Purchaser and his or her heirs, executors, administrators, successors and
assigns.
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12. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Purchaser or by the Company forthwith to the
Company's Board of Directors or the committee thereof that administers the Plan,
which shall review such dispute at its next regular meeting. The resolution of
such a dispute by the Board or committee shall be final and binding on the
Company and on Purchaser.
13. Governing Law; Severability. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, excluding
that body of law pertaining to conflicts of law. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
14. Notices. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
15. Further Instruments. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
16. Delivery of Payment. Purchaser herewith delivers to the Company the
full Exercise Price for the Shares.
17. Entire Agreement. The Plan and Notice of Grant/Purchase Agreement
are incorporated herein by reference. This Agreement, the Plan and the Notice of
Grant/Purchase Agreement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings and agreements of the Company
and Purchaser with respect to the subject matter hereof, and is governed by
California law except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
PURCHASER: MAVERICK SEMICONDUCTOR, INC.
___________________________________ By_________________________________
(Signature)
Its________________________________
Address: Address:
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, XX 00000
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MAVERICK NETWORKS
(FORMERLY KNOWN AS MAVERICK SEMICONDUCTOR, INC.)
1998 STOCK PLAN
ATTACHMENT 1 TO RESTRICTED STOCK PURCHASE AGREEMENT
STOCK POWER AND ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Purchase
Agreement dated as of __________, 19__, the undersigned hereby sells, assigns
and transfers unto___________________________________________, _______________
shares of the Common Stock of MAVERICK SEMICONDUCTOR, INC., a California
corporation, standing in the undersigned's name on the books of said corporation
represented by Certificate No. __________ delivered herewith, and does hereby
irrevocably constitute the Secretary of said corporation as attorney-in-fact,
with full power of substitution, to transfer said stock on the books of said
corporation.
Dated: __________, 19__
___________________________________
(Signature)
___________________________________
(Please Print Name)
___________________________________
(Spouse's Signature, if any)
___________________________________
(Please Print Name)
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MAVERICK NETWORKS
(FORMERLY KNOWN AS MAVERICK SEMICONDUCTOR, INC.)
1998 STOCK PLAN
ATTACHMENT 2 TO RESTRICTED STOCK PURCHASE AGREEMENT
JOINT ESCROW INSTRUCTIONS
___________, 199__
Secretary
MAVERICK SEMICONDUCTOR, INC.
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, XX 00000
Dear Sir:
As Escrow Agent for both MAVERICK SEMICONDUCTOR, INC., a
California corporation ("Corporation"), and the undersigned purchaser of stock
of the Corporation ("Purchaser"), you are hereby authorized and directed to hold
the documents delivered to you pursuant to the terms of that certain Restricted
Stock Purchase Agreement ("Agreement"), dated as of __________, 19__, to which a
copy of these Joint Escrow Instructions is attached, in accordance with the
following instructions:
1. In the event the Corporation and/or any assignee of the
Corporation (referred to collectively for convenience herein as the
"Corporation") exercises the Repurchase Option set forth in the Agreement, the
Corporation shall give to Purchaser and you a written notice specifying the
number of shares of stock to be purchased, the purchase price, and the time for
a closing hereunder at the principal office of the Corporation. Purchaser and
the Corporation hereby irrevocably authorize and direct you to close the
transaction contemplated by such notice in accordance with the terms of said
notice.
2. At the closing, you are directed (a) to date the stock
assignments necessary for the transfer in question, (b) to fill in the number of
shares being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation against the
simultaneous delivery to you of the purchase price (by check or by cancellation
of any debt owed by Purchaser to the Corporation) for the number of shares of
stock being purchased pursuant to the exercise of the Repurchase Option.
3. Purchaser irrevocably authorizes the Corporation to deposit
with you any certificates evidencing shares of stock to be held by you hereunder
and any additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete any transaction herein contemplated,
including but not limited to the filing with the Department of Corporations of
the State of California of an Application for Consent to Transfer Securities
Subject to Legend or Escrow Condition Pursuant to Section 25151 of the
California Corporate Securities Law of 1968. Subject to the provisions of this
paragraph 3, Purchaser shall exercise all rights and privileges of a stockholder
of the Corporation while the stock is held by you.
4. Upon written request of the Purchaser after each successive
one-year period from the date of the Agreement, unless the Repurchase Option has
been exercised, you will deliver to Purchaser a certificate or certificates
representing so many shares of stock as are not then subject to the Repurchase
Option. Ninety days after cessation of Purchaser's service to the Company, you
will deliver to Purchaser a certificate or certificates representing the
aggregate number of shares sold and issued pursuant to the Agreement and not
purchased by the Corporation or its assignees pursuant to exercise of the
Repurchase Option.
Notwithstanding the foregoing, none of the certificates
representing the shares of stock deposited under these escrow instructions shall
be released to the Purchaser if the Purchaser's Note given in payment for such
shares has not been paid in full. So long as any Note is outstanding, the shares
shall be held by you as collateral for the obligation
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under the Note. Subject to the provisions of this paragraph 4, upon payment of
the Note in full the certificates representing the shares may be released and
delivered to the Purchaser. In the event Purchaser defaults in payment of the
Note when due, you shall, upon written request of the Corporation, deliver the
certificate evidencing the shares of stock and the stock assignments to the
Corporation to enable the Corporation to exercise its rights as a secured party
under the Commercial Code of the State of California.
5. If at the time of termination of this escrow you should have
in your possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of same to Purchaser and shall be discharged of
all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith and in the exercise of your own good judgment, and any act done or
omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment or decree, you
shall not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the
identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights
under the Statute of Limitations with respect to these Joint Escrow Instructions
or any documents deposited with you.
11. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall
terminate if you shall cease to be Secretary of the Corporation or if you shall
resign by written notice to each party. In the event of any such termination,
the Corporation shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise
with respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such disputes shall have been settled either by mutual written agreement
of the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
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15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten (10) days' advance written notice to each of the other parties
hereto.
CORPORATION: MAVERICK SEMICONDUCTOR, INC.
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, XX 00000
PURCHASER: ______________________________
______________________________
______________________________
ESCROW AGENT: Secretary
MAVERICK SEMICONDUCTOR, INC.
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, XX 00000
16. By signing these Joint Escrow Instructions, you become a
party hereto only for the purpose of said Joint Escrow Instructions; you do not
become a party to the Agreement.
17. This instrument shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted
assigns.
Very truly yours,
MAVERICK SEMICONDUCTOR, INC.
a California corporation
By_________________________________
Title______________________________
PURCHASER
___________________________________
ESCROW AGENT
___________________________________
Secretary
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MAVERICK NETWORKS
(FORMERLY KNOWN AS MAVERICK SEMICONDUCTOR, INC.)
1998 STOCK PLAN
ATTACHMENT 3 TO RESTRICTED STOCK PURCHASE AGREEMENT
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE OF 1986
The undersigned Taxpayer hereby elects, pursuant to the provisions of Section
83(b) of the Internal Revenue Code of 1986,. as amended, to include in taxable
income for the Taxpayer's current taxable year, as compensation for services,
the excess, if any, of the fair market value of the property described below at
the time of transfer over the amount paid for such property.
1. Taxpayer's Name: ______________________________________________________
Taxpayer's Address: ___________________________________________________
___________________________________________________
Social Security Number:________________________________________________
2. The property with respect to which the election is made is described as
follows: ___________ shares of Common Stock of MAVERICK SEMICONDUCTOR,
INC., a California corporation (the "Company"), which is Taxpayer's
employer or the corporation for whom the Taxpayer has performed
services.
3. The date on which the shares were transferred was ___________, 19__,
and this election is made for calendar year 19__.
4. The shares are subject to the following restrictions:
[x] The Company may repurchase all or a portion of the shares at the
Taxpayer's original purchase price under certain conditions at
the time of Taxpayer's termination of employment or services.
[x] A right of first refusal in the Company for vested shares at
fair market value upon termination of employment with the
Company.
5. The fair market value of the shares (without regard to restrictions
other than restrictions which by their terms will never lapse) was
$_________ per share at the time of transfer.
6. The amount paid for such shares was $________ per share.
7. The Taxpayer has submitted a copy of this statement to the Company as
the Taxpayer's employer or the corporation for whom the Taxpayer has
performed services.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS") (AT THE
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS) WITHIN 30 DAYS AFTER
THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE TAXPAYER'S
INCOME TAX RETURNS FOR THE CALENDAR YEAR ABOVE STATED. THE ELECTION CANNOT BE
REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: __________, 19__
___________________________________
Taxpayer's Signature
___________________________________
Spouse's Signature (if any)
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MAVERICK NETWORKS
(FORMERLY KNOWN AS MAVERICK SEMICONDUCTOR, INC.)
EXHIBIT A
FULL RECOURSE PROMISSORY NOTE
$_________ __________, California
____________, 199_
FOR VALUE RECEIVED, ______________, an individual ("Borrower"),
hereby promises to pay to the order of Maverick Semiconductor, Inc., a
California corporation ("Company") the principal sum
of__________________________, plus interest which is compounded in accordance
herewith, on the date (the "Maturity Date") which is the _______anniversary of
the date of this Note; and to pay interest in arrears on said sum, or such
lesser amount as shall from time to time be outstanding hereunder upon
prepayment (to the extent thereof) and on the Maturity Date, at an annual rate
of interest (based on a year of 365 days and actual days elapsed) equal to the
applicable federal rate (the "Rate") for the date of this Note, as announced by
the Internal Revenue Service with respect to deemed demand loans made by a
company to its service-provider.
1. PAYMENT TERMS.
1.1. Location of Payment. Borrower shall make all payments hereunder to
Company at__________________________ or to such other location as the holder
hereof shall specify in writing to Borrower, in lawful money of the United
States and in same day or immediately available funds.
1.2. Principal and Interest Payments; Compounding of Interest. The
principal amount of this Note shall be due and payable in a single installment
due on the Maturity Date. Accrued interest on the principal amount of this Note
shall be due and payable on prepayment, to the extent thereof and on the
Maturity Date. On each anniversary of the date of this Note, all interest then
accrued on this Note shall be added to the principal amount hereof and shall
thereafter bear interest at the rates set forth herein.
1.3. Prepayment.
(a) At his option, Borrower may, upon three (3) business day's
notice to Company, prepay this Note in whole or in part without penalty.
(b) If Borrower proposes to sell, transfer or assign any shares
of the shares of stock which are pledged to secure this Note pursuant to the
Security Agreement (as hereinafter defined), then the principal amount of this
Note shall be prepaid in an amount proportionally equal to the proportion which
the shares which are to be sold, transferred or assigned bears to the original
number of shares pledged under the Security Agreement (as adjusted for any stock
splits, recapitalizations, etc.). Such prepayment shall be made simultaneous
with such sale, transfer or assignment.
1.4. Date of Payment. Whenever any payment due hereunder shall fall due
on a day other than a business day, such payment shall be made on the next
succeeding business day, and such extension of time shall be included in the
computation of interest.
1.5. Late Payments. If any amounts required to be paid by Borrower under
this Note remain unpaid after such amounts are due, Borrower shall pay interest
on the aggregate, outstanding balance of such amounts from the date due until
those amounts are paid in full at a per annum rate equal to the Rate plus two
percent (2%).
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1.6. Notations on Note. Borrower hereby authorizes Company to record on
the schedule(s) annexed to this Note the date and amount of each payment or
prepayment of principal or interest made by Borrower.
1.7. Usury Savings Clause. Notwithstanding any other term of this Note,
Company shall never be entitled to receive, collect or apply as interest on this
Note, any amount in excess of the maximum rate of interest (the "Maximum Rate")
which Company is allowed to charge or receive under applicable law and, if
Company ever receives, collects or applies as interest any such excess, such
amount which would be excessive interest shall be deemed a partial prepayment of
principal and treated under this Note as such; and, if the principal of this
Note is paid in full, any remaining excess shall forthwith be paid to Borrower.
In furtherance of the foregoing, Borrower and Company (by its acceptance of this
Note) stipulate and agree that none of the terms and provisions contained in
this Note shall ever be construed to create a contract to pay interest at a rate
in excess of the Maximum Rate. In determining whether or not the interest paid
or payable, under any specific contingency, exceeds the Maximum Rate, Borrower
and Company shall, to the maximum extent permitted under applicable law, (i)
characterize any nonprincipal payment as an expense, fee or premium rather than
as interest, (ii) exclude voluntary prepayments and the effects thereof, and
(iii) amortize, prorate, allocate and spread, in equal parts, the total amount
of interest throughout the entire contemplated term of this Note so that the
interest rate is uniform throughout the entire term thereof; provided, that if
this Note is paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received would exceed the Maximum
Rate, then Company shall refund to Borrower the amount of such excess or credit
against the principal of this Note, and, in such event, Company shall not be
subject to any penalties provided by law for contracting for, charging or
receiving interest in excess of the Maximum Rate.
2. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Company that this Note has been duly executed and delivered by
Borrower and constitutes a legal, valid and binding obligation of Borrower,
enforceable against him in accordance with its terms, except as the
enforceability thereof may be affected by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally, and except as the
availability of certain equitable remedies may be limited by certain equitable
principles of general applicability.
3. SECURITY. This Note is secured by that certain Security Agreement dated as of
the date of this Note (the "Security Agreement") from Borrower in favor of
Company.
4. EVENTS OF DEFAULT. The occurrence or existence of any one or more of the
following shall constitute an "Event of Default" hereunder:
(a) Borrower shall fail to pay when due any principal, interest or other
amount payable under the terms of this Note and such failure shall continue for
ten (10) days; or
(b) Borrower shall fail to observe or perform any other covenant,
obligation, condition or agreement contained in this Note or the Security
Agreement and such failure shall continue for ten (10) days after Company
notifies Borrower of such failure; or
(c) Any representation or warranty made by Borrower to Company in this
Note or the Security Agreement, shall be false, incorrect, incomplete or
misleading in any material respect when made; or
(d) Any of the following shall occur (i) a receiver, trustee or
custodian shall be appointed for Borrower or all or a substantial part of his
property, (ii) Borrower shall make a general assignment for the benefit of
creditors, (iii) Borrower shall become insolvent (as such term may be defined or
interpreted under any applicable statute), (iv) a voluntary or involuntary case
or other proceeding seeking relief with respect to
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Borrower or his debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect shall be commenced; or
(e) Borrower's consulting or employment relationship with Company shall
terminate for any reason.
5. REMEDIES. Upon the occurrence or existence of any Event of Default (other
than an Event of Default referred to in Section 4(d)) and at any time thereafter
during the continuance of such Event of Default, Company may by written notice
to Borrower, declare all outstanding obligations payable by Borrower hereunder
to be immediately due and payable without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived, anything
contained herein to the contrary notwithstanding. Upon the occurrence or
existence of any Event of Default described in Section 4(d) immediately and
without notice, all outstanding obligations payable by Borrower hereunder shall
automatically become immediately due and payable without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein to the contrary notwithstanding. In addition
to the foregoing remedies, upon the occurrence or existence of any Event of
Default, Company may exercise any right, power or remedy permitted to it by the
Security Agreement or law, either by suit in equity or by action at law, or
both.
6. NOTICES. All notices, demands or consents required or permitted under this
Note shall be in writing and shall be delivered personally or sent by national
overnight courier service or by registered or certified, return receipt
requested mail to the address set forth, with respect to Borrower, below his
signature on this Note and, with respect to Company, at the address indicated in
Section 1.1 of this Note, or to such other address as the recipient of any
notice shall have notified the other. All notices, demands or consents shall be
deemed effective upon personal delivery or three (3) days following dispatch in
the United States mail in accordance with this section, or one (1) business day
following deposit with any national overnight courier service in accordance with
this section. The requirements of this section shall be strictly followed and
the terms of this provision shall be strictly construed and applied.
7. MISCELLANEOUS. Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Company in the enforcement or attempt to
enforce any of Borrower's obligations hereunder not performed when due. Borrower
hereby waives notice of presentment, demand, protest or notice of any other
kind. This Note shall be governed by and construed in accordance with the laws
of the State of California.
IN WITNESS WHEREOF, Borrower has executed this Note as of the day
and year first above written.
___________________________________
Borrower
Address:
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PAYMENTS
Principal
or Interest
Date Payments Notation By
---- ----------- -----------
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MAVERICK NETWORKS
(FORMERLY KNOWN AS MAVERICK SEMICONDUCTOR, INC.)
EXHIBIT B TO RESTRICTED STOCK PURCHASE AGREEMENT
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made as of the _____ day of
______________, 199__ between MAVERICK SEMICONDUCTOR, INC., a California
corporation ("PLEDGEE" or the "Company"), and __________ ("Pledgor").
Recitals
Pledgor purchased an aggregate of________ shares of Common Stock
of MAVERICK SEMICONDUCTOR, INC. . (the "Stock") under a Restricted Stock
Purchase Agreement dated _____________, 199__ (the "Purchase Agreement"),
between Pledgor and Pledgee. As payment for the Stock, Pledgor delivered a
Promissory Note (the "Note") in an amount of $__________.
NOW THEREFORE, it is agreed as follows:
1. Creation and Description of Security Interest. In order to
secure Pledgor's obligation to pay the Note in full, Pledgor, pursuant to the
Commercial Code of the State of California, hereby pledges all of the Stock
(herein sometimes referred to as the "Collateral") represented by certificates
number , as well as all other stock owned in the Company by Pledgor. In
addition, if the Company so requests, Pledgor agrees to collateralize this Note
with additional property deemed satisfactory by the Company.
The pledged Stock (together with an executed blank stock assignment for use in
transferring all or a portion of the Stock to Pledgee if, as and when required
pursuant to this Security Agreement) shall be delivered to the Secretary of
Pledgee, or such other person designated by the Company ("Escrow Agent") to be
held pursuant to an Escrow Agreement attached hereto (the "Escrow Agreement") as
security for the repayment of the Note, and any extensions or renewals thereof.
2. Pledgor's Representations and Covenants. To induce Pledgee to
enter into this Security Agreement, Pledgor represents and covenants to Pledgee,
its successors and assigns, as follows:
(a) Payment of Indebtedness. Pledgor will pay the
principal sum of the Note secured hereby, together with interest thereon, at the
time and in the manner provided in the Note.
(b) Encumbrances. The Stock is not subject to any
encumbrances, defenses and liens other than the security interest granted
hereunder, and Pledgor will not further encumber the Stock in any manner without
the prior written consent of Pledgee.
(c) Margin Regulations. In the event that Pledgee's Common
Stock becomes margin-listed by the Federal Reserve Board subsequent to the
execution of this Security Agreement, and Pledgee is classified as a "lender"
within the meaning of the regulations under Part 207 of Title 12 of the Code of
Federal Regulations ("Regulation G"), Pledgor agrees to cooperate with Pledgee
in making any amendment to the Note or providing any additional collateral as
may be necessary to comply with such regulations.
3. Voting Rights. During the term of this pledge and so long as
all payments of principal and interest are made as they become due under the
terms of the Note, Pledgor shall have the right to vote all of the Stock pledged
hereunder.
4. Stock Adjustments. In the event that during the term of the
pledge any stock dividend, reclassification, readjustment or other changes
declared or made in the capital structure of Pledgee, all new, substituted and
additional shares or other securities issued by reason of any such change shall
be delivered to and held by the Pledgee and Escrow Agent under the terms of this
Security Agreement and the Escrow Agreement in the same manner as the Stock
originally pledged hereunder. In the event of substitution of such securities,
Pledgor and Pledgee shall cooperate and execute such documents as are reasonable
so as to provide for the substitution of such Collateral and, upon such
substitution, references to "Stock" in this Security Agreement shall include the
substituted shares of capital stock of Pledgor as a result thereof.
5. Warrants and Rights. In the event that, during the term of
this pledge, subscription warrants or other rights or options shall be issued in
connection with the pledged Stock, such rights, warrants and options shall be
the property of Pledgor and, if exercised by Pledgor, all new stock or other
securities so acquired by Pledgor as it relates to the pledged Stock
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then held by Escrow Agent shall be immediately delivered to Escrow Agent, to be
held under the terms of this Security Agreement in the same manner as the Stock
pledged.
6. Default. Pledgor shall be deemed to be in default of the Note
and of this Security Agreement in the event:
(a) Payment of principal or interest on the Note shall be
delinquent for a period of ten (10) days or more; or
(b) Pledgor fails to perform any of the covenants set
forth in the Purchase Agreement or the Note or contained in this Security
Agreement for a period of ten (10) days after written notice thereof from
Pledgee.
In the case of an event of default, as set forth above, Pledgee
shall have the right to accelerate payment of the Note upon notice to Pledgor,
and Pledgee shall thereafter be entitled to pursue its remedies under the
California Commercial Code.
7. Withdrawal or Substitution of Collateral. Until the Note has
been paid in full, Pledgor shall not sell, withdraw, pledge, substitute or
otherwise dispose of all or any part of the Collateral without the prior written
consent of Pledgee.
8. Term. The within pledge of Stock shall continue until the
payment of all indebtedness secured hereby, at which time the remaining pledged
Stock shall be promptly delivered to Pledgor, subject to the terms of any other
agreement between Pledgor and Pledgee.
9. Insolvency. Pledgor agrees that if a bankruptcy or insolvency
proceeding is instituted by or against him, or if a receiver is appointed for
the property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due and
payable, and Pledgee may proceed as provided in the case of default.
10. Escrow Agent Liability. The liability of the Escrow Agent
shall be limited as provided in the Escrow Agreement.
11. Miscellaneous.
(a) Invalidity of Particular Provisions. Pledgor and
Pledgee agree that the enforceability or invalidity of any provision or
provisions of this Security Agreement shall not render any other provision or
provisions herein contained unenforceable or invalid.
(b) Successors or Assigns. Pledgor and Pledgee agree that
all of the terms of this Security Agreement shall be binding on their respective
successors and assigns, and that the term "Pledgor" and the term "Pledgee" as
used herein shall be deemed to include, for all purposes, the respective
designees, successors, assigns, heirs, executors and administrators.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as applied to
contracts between California residents to be wholly performed within the State
of California.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
"PLEDGEE"
________________________________________
a ___________ corporation
By:_____________________________________
Title:__________________________________
"PLEDGOR"
________________________________________
Address:
________________________________________
________________________________________
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