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EXHIBIT 99.4
STRATUMONE COMMUNICATIONS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made this __ day of __________, 19__, between
StratumOne Communications, Inc., a California corporation (the "Company"), and
[PURCHASER] (the "Purchaser").
WHEREAS Purchaser is an employee, consultant or service provider of the
Company whose continued affiliation with the Company is considered to be
important for the Company's continued growth; and
WHEREAS in order to provide purchaser an opportunity to acquire an
equity interest in the Company as an incentive for Purchaser to participate in
the affairs of the Company, the Company is willing to sell to Purchaser and
Purchaser desires to purchase [TOTAL] shares of Common Stock according to the
terms and conditions hereof.
THEREFORE, the parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the Purchaser
and the Purchaser hereby agrees to purchase an aggregate of [TOTAL] shares of
the Company's Common Stock (the "Shares"), at the price of $0.01 per share for
an aggregate purchase price of [AGGREGATE].
2. Payment of Purchase Price. The purchase price for the Shares shall
be paid by cash or check.
3. Repurchase Option.
(a) In the event of any voluntary or involuntary termination of the
Purchaser's employment with the Company for any or no reason, including death or
disability, before all of the Shares are released from the Company's repurchase
option (see Section 4), the Company shall, upon the date of such termination (as
reasonably fixed and determined by the Company) have an irrevocable, exclusive
option for a period of ninety (90) days from such date to repurchase all (but
not less than all) of the Unreleased Shares (as defined in Section 4) at such
time at $0.01 per share (the "Repurchase Price"). The decision regarding whether
or not to exercise this repurchase option shall be made by the Board of
Directors of the Company; provided, however, that if the Purchaser or any of his
relatives are Directors of the Company, such Directors shall not participate in
such vote. Said option shall be exercised by the Company by written notice to
the Purchaser or the Purchaser's executor (with a copy to the Escrow Holder)
and, at the Company's option, (i) by delivery to the Purchaser or the
Purchaser's executor with such notice of a check in the amount of the Repurchase
Price for the Shares being repurchased, or (ii) by cancellation by the Company
of an amount of the Purchaser's indebtedness to the Company equal to the
Repurchase Price for the Shares being repurchased, or (iii) by a combination of
(i) and (ii) so that the combined payment and cancellation of indebtedness
equals such Repurchase Price. Upon delivery of such notice and the payment of
the Repurchase Price in any of the ways described above, the Company shall
become the legal and
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beneficial owner of the Shares being repurchased and all rights and interests
therein or relating thereto, and the Company shall have the right to retain and
transfer to its own name the number of Shares being repurchased by the Company.
(b) Whenever the Company shall have the right to repurchase Shares
hereunder, the Company may designate and assign one or more employees, officers,
directors or shareholders of the Company or other persons or organizations to
exercise all or a part of the Company's purchase rights under this Agreement and
purchase all or a part of such Shares; provided that if the fair market value of
the Shares to be repurchased on the date of such designation or assignment (the
"Repurchase FMV") exceeds the Repurchase Price of the Shares to be repurchased,
then each such designee or assignee shall pay the Company cash equal to the
difference between the Repurchase FMV and the Repurchase Price of the Shares
which such designee or assignee shall have the right to repurchase.
4. Release of Shares From Repurchase Option.
(a) Except as provided by Section 4(b) below, one forty-eighth
(1/48th) of the Shares shall be released from the Company's repurchase option on
the last day of each full calendar month beginning [VESTING], provided in each
case that the Purchaser's employment with the Company has not been terminated
prior to the date of any such release.
(b) If a "Liquidating Event" (as defined below) occurs prior to
termination of Purchaser's employment with the Company, then Shares shall be
released from the Company's repurchase option as follows (instead of under
Section 4(a)):
(1) Upon the Liquidating Event, the cumulative number of Shares
released from the Company's repurchase option shall be equal to
(A) one forty-eighth (1/48th) of the Shares multiplied by
the number of complete calendar months that have elapsed since (and including)
[FIRST], 19__, plus
(B) an additional one fourth (1/4th) of the [TOTAL] Shares,
except that additional Shares shall not be released pursuant to this clause (B)
to the extent that such release would cause the cumulative number of released
shares to exceed three fourths (3/4ths) of the total number of Shares.
(C) After the date of the Liquidating Event, an additional
one forty-eighth (1/48th) of the [TOTAL] Shares shall be released from the
Company's repurchase option on the last day of each calendar month (including
the calendar month during which the Liquidating Event occurs unless such
Liquidating Event occurs on the last day of a calendar month), provided in each
case that the Purchaser's employment with the Company has not been terminated
prior to the date of any such release.
(c) "Liquidating Event" means (i) any liquidation, dissolution
or winding up of the Company, either voluntary or involuntary, or (ii) a merger,
reorganization, or sale of all or substantially all of the assets of the Company
in which the shareholders of the Company
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immediately prior to the transaction possess less than 50% of the voting power
of the surviving entity (or its parent) immediately after the transaction, or
(iii) any transaction or series of related transactions by which voting
securities representing the right to elect a majority of the Company's Board of
Directors are transferred to a single person or to a group of persons acting in
concert with respect to electing directors of this corporation.
(d) Any of the Shares which have not yet been released from the
Company's repurchase option are referred to herein as "Unreleased Shares."
(e) The Shares which have been released from the Company's
repurchase option shall be delivered to the Purchaser at the Purchaser's request
(see Section 6).
5. Restriction on Transfer. Except for the escrow described in Section
6 or transfer of the Shares to the Company or its assignees contemplated by this
Agreement (and notwithstanding anything to the contrary in Section 9), none of
the Shares or any beneficial interest therein shall be transferred, encumbered
or otherwise disposed of in any way until the release of such Shares from the
Company's repurchase option in accordance with the provisions of this Agreement,
other than by will or the laws of descent and distribution.
6. Escrow of Shares.
(a) The Shares issued under this Agreement shall be held by an
escrow holder designated by the Company (the "Escrow Holder"), along with a
stock assignment executed by the Purchaser in blank, until the expiration of the
Company's option to repurchase such Shares as set forth above.
(b) The Escrow Holder is hereby directed to permit transfer of the
Shares only in accordance with this Agreement or instructions signed by both
parties. In the event further instructions are desired by the Escrow Holder, the
Escrow Holder shall be entitled to rely upon directions executed by a majority
of the authorized number of the Company's Board of Directors. The Escrow Holder
shall have no liability for any act or omission hereunder while acting in good
faith in the exercise of the Escrow Holder's own judgment.
(c) If the Company or any assignee exercises its repurchase option
hereunder, the Escrow Holder, upon receipt of written notice of such option
exercise from the proposed transferee, shall take all steps necessary to
accomplish such transfer.
(d) When the repurchase option has been exercised or expires
unexercised or a portion of the Shares has been released from such repurchase
option, upon Purchaser's request the Escrow Holder shall promptly cause a new
certificate to be issued for such released Shares and shall deliver such
certificate to the Purchaser.
(e) Subject to the terms hereof, the Purchaser shall have all the
rights of a shareholder with respect to such Shares while they are held in
escrow, including without limitation, the right to vote the Shares and receive
any cash dividends declared thereon. If, from time to time during the term of
the Company's repurchase option, there is (i) any stock dividend, stock split or
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other change in the Shares, or (ii) any merger or sale of all or substantially
all of the assets or other acquisition of the Company, any and all new,
substituted or additional securities to which the Purchaser is entitled by
reason of the Purchaser's ownership of the Shares shall be immediately subject
to this escrow, deposited with the Escrow Holder and included thereafter as
"Shares" for purposes of this Agreement and the Company's repurchase option.
7. Investment Representations; Restrictions on Transfer.
(a) In connection with the purchase of the Shares, the Purchaser
represents to the Company the following:
i) The Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Shares. The
Purchaser is purchasing these Shares for investment for the Purchaser's own
account only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
ii) The Purchaser acknowledges and understands that the Shares
constitute "restricted securities" under the Securities Act and must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. The Purchaser further
acknowledges and understands that the Company is under no obligation to register
the Shares. The Purchaser understands that the certificate evidencing the Shares
will be imprinted with a legend which prohibits the transfer of the Shares
unless they are registered or such registration is not required in the opinion
of counsel satisfactory to the Company.
iii) The Purchaser is familiar with the provisions of Rule 701
and Rule 144, each promulgated under the Securities Act, which, in substance,
permit limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer
qualifies under Rule 701 at the time of issuance of the securities to the
Purchaser, such issuance will be exempt from registration under the Securities
Act. In the event the Company later becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
ninety (90) days thereafter the securities exempt under Rule 701 may be resold,
subject to the satisfaction of certain of the conditions specified by Rule 144,
including among other things: (1) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); and,
in the case of an affiliate, (2) the availability of certain public information
about the Company, and the amount of securities being sold during any three
month period not exceeding the limitations specified in Rule 144(e), if
applicable. Notwithstanding this paragraph 7(a)(iii), the Purchaser acknowledges
and agrees to the restrictions set forth in paragraph 7(b).
In the event that the Company does not qualify under Rule 701 at
the time of issuance of the securities to the Purchaser, then the securities may
be resold in certain limited circumstances subject to the provisions of Rule
144, which requires among other things: (1) the availability of certain public
information about the Company: (2) the resale occurring not less than
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two years after the party has purchased, and made full payment for, within the
meaning of Rule 144, the securities to be sold; and (3) in the case of an
affiliate, or of a non-affiliate who has held the securities less than three
years, the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934) and the amount of securities
being sold during any three month period not exceeding the specified limitations
stated therein, if applicable.
(b) The Purchaser agrees, in connection with the Company's initial
underwritten public offering of the Company's securities, (1) not to sell, make
short sale of, loan, grant any options for the purchase of, or otherwise dispose
of any shares of Common Stock of the Company held by the Purchaser (other than
those shares included in the registration) without the prior written consent of
the Company or the underwriters managing such initial underwritten public
offering of the Company's securities for one hundred eighty (180) days from the
effective date of such registration, and (2) further agrees to execute any
agreement reflecting (1) above as may be requested by the underwriters at the
time of the public offering.
8. Legends. The share certificate evidencing the Shares issued
hereunder shall be endorsed with the following legends (in addition to any
legend required under applicable state securities laws):
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
9. Company's Right of First Refusal. Before all or any portion of the
Shares held by the Purchaser or any transferee (either being referred to herein
as the "Shareholder") 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 such Shares on the terms and conditions set forth
in this Section (the "Right of First Refusal").
(a) The Shareholder shall deliver to the Company a written notice
(the "Notice") stating: (i) the Shareholder's bona fide intention to sell or
otherwise transfer such Shares; (ii) the name of each proposed purchaser or
other transferee (the "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 Shareholder proposes to transfer the Shares
(the "Offered Price"), and the Shareholder shall offer the Shares at the Offered
Price to the Company or its assignee(s).
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(b) At any time within thirty (30) days after receipt of the Notice,
the Company and/or its assignee(s) may, by giving written notice to the
Shareholder, elect 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.
(c) The purchase price (the "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, which determination shall be
final and binding.
(d) Payment of the Purchase Price shall be made, at the option of
the Company or its assignee(s), in cash, by check, by cancellation of all or a
portion of any outstanding indebtedness of the Purchaser to the Company (or, in
the case of repurchase by an assignee, to the assignee), or by any combination
thereof within thirty (30) days after receipt of the Notice or in the manner and
at the times set forth in the Notice.
(e) 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) as provided in this Section, then the Shareholder 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 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 Shareholder may be sold or
otherwise transferred.
(f) 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.
(g) The Right of First Refusal shall terminate upon the closing of
the first sale of Common Stock of the Company to the general public pursuant to
a registration statement filed with and declared effective by the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
10. Adjustment for Stock Split. All references to the number of Shares
and the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock
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dividend or other change in the Shares which may be made by the Company after
the date of this Agreement.
11. Tax Consequences. The Purchaser has reviewed with the Purchaser's
own tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. The Purchaser is
relying solely on such advisors and not on any statements or representations of
the Company or any of its agents. The Purchaser understands that the Purchaser
(and not the Company) shall be responsible for the Purchaser's own tax liability
that may arise as a result of this investment or the transactions contemplated
by this Agreement. The Purchaser understands that Section 83 of the Internal
Revenue Code of 1986, (the "Code"), taxes as ordinary income both (i) the
difference between the fair market value of the Shares when the Company granted
the Purchaser the right to purchase the Shares and the fair market value of the
Shares on the date of this Agreement and (ii) the difference between the amount
paid for the Shares and the fair market value of the Shares as of the date any
restrictions on the Shares lapse. In this context, "restriction" includes the
right of the Company to buy back the Shares pursuant to its repurchase option.
In the event the Company has registered under the Exchange Act, "restriction"
with respect to officers, directors and 10% shareholders also means the period
after the purchase of the Shares during which such officers, directors and 10%
shareholders could be subject to suit under Section 16(b) of the Exchange Act.
The Purchaser understands that the Purchaser may elect to be taxed at the time
the Shares are purchased rather than when and as the Company's repurchase option
or 16(b) period expires by filing an election under Section 83(b) of the Code
with the I.R.S. within 30 days from the date of purchase.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE
THIS FILING ON THE PURCHASER'S BEHALF.
12. General Provisions.
(a) This Agreement shall be governed by the laws of the State of
California. This Agreement represents the entire agreement between the parties
with respect to the purchase of Common Stock by the Purchaser and supersedes all
prior agreements and understandings relating to the subject matter hereof. This
Agreement may only be modified or amended in writing signed by both parties.
(b) The representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the sale of the Shares.
(c) Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.
(d) Any notice, demand or request required or permitted to be given
by either the Company or the Purchaser pursuant to the terms of this Agreement
shall be in writing and shall be deemed given when delivered personally or
deposited in the U.S. mail, First Class with postage
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prepaid, and addressed to the parties at the addresses of the parties set forth
at the end of this Agreement or such other address as a party may request by
notifying the other in writing.
Any notice to the Escrow Holder shall be sent to the Company's
address with a copy to the other party not sending the notice.
(e) The rights and benefits of the Company under this Agreement
shall be transferable to any one or more persons or entities, and all covenants
and agreements hereunder shall inure to the benefit of, and be enforceable by
the Company's successors and assigns. The rights and obligations of the
Purchaser under this Agreement may only be assigned with the prior written
consent of the Company.
(f) Either party's failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of either party's right
to assert all other legal remedies available to it under the circumstances.
(g) The Purchaser agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
(h) This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
(i) PURCHASER ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO SECTION 4 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE
OR CONSULTANT AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED OR
PURCHASING SHARES HEREUNDER). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE
SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED
ENGAGEMENT AS AN EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD,
OR AT ALL, AND SHALL NOT INTERFERE WITH PURCHASER'S RIGHT OR THE COMPANY'S RIGHT
TO TERMINATE PURCHASER'S EMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH
OR WITHOUT CAUSE.
(j) 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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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first set forth above.
STRATUMONE COMMUNICATIONS, INC. PURCHASER:
a California corporation
By: _________________________________ ________________________________
Xxxxxx Xxxxx
Title: ______________________________
Address: 0000 Xxxxxxx Xxxxxx Address: ______________________
Suite 102 ______________________
Xxxxx Xxxxx, Xxxxxxxxxx 00000 ______________________
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CONSENT OF SPOUSE
I, _____________________________, spouse of [PURCHASER], have read
and approve the foregoing Agreement. In consideration of granting of the right
to my spouse to purchase [TOTAL] shares of Common Stock of StratumOne
Communications, Inc., as set forth in the Agreement, I hereby appoint my spouse
as my attorney-in-fact in respect to the exercise of any rights under the
Agreement and agree to be bound by the provisions of the Agreement insofar as I
may have any rights in said Agreement or any shares issued pursuant thereto
under the community property laws of the State of California or similar laws
relating to marital property in effect in the state of our residence as of the
date of the signing of the foregoing Agreement.
Dated: _____________, 19__
_______________________________________
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________, hereby sell, assign and
transfer unto _____________________________________________ (__________) shares
of the Common Stock of StratumOne Communications, Inc. standing in my name of
the books of said corporation represented by Certificate No. _____ herewith and
do hereby irrevocably constitute and appoint Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
attorney, to transfer the said stock on the books of the within named
corporation with full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the
Restricted Stock Purchase Agreement between StratumOne Communications, Inc. and
the undersigned dated _____________, 19__.
Dated: _____________, 19__
Signature: ______________________________
[purchaser]
INSTRUCTION: Please do not fill in any blanks other than the signature line. The
purpose of this assignment is to enable the Company to exercise its "repurchase
option" set forth in the Agreement without requiring additional signatures on
the part of the Purchaser.
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JOINT ESCROW INSTRUCTIONS
_____________, 19__
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Attn: Xxxx Xxxxx
Dear Xx. Xxxxx:
As Escrow Agent for both, StratumOne Communications, Inc., a California
corporation ("Company"), and the undersigned purchaser of stock of the Company
("Purchaser"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Restricted Stock Purchase
Agreement ("Agreement") between the Company and the undersigned, to which a copy
of these Joint Escrow Instructions is attached as Exhibit D, in accordance with
the following instructions:
1. In the event the Company and/or any assignee of the Company
(referred to collectively for convenience herein as the "Company") exercises the
Repurchase Option set forth in the Agreement, the Company 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 Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date 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 Company or its
assignee, in accordance with the Agreement, against the simultaneous delivery to
you of the purchase price (by check, wire transfer or promissory note) for the
number of shares of stock being purchased pursuant to the exercise of the
Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of 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 Corporation Securities Law of 1968. Subject to the provisions of this
paragraph 3, Purchaser shall exercise all rights and privileges of a shareholder
of the Company while the stock is held by you.
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4. Upon written request of Purchaser, but no more than once per
calendar year, 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. Within 90 days after cessation
of Purchaser's continuous employment by the Company, or any parent or subsidiary
of 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 Company or its assignees pursuant to exercise
of the Repurchase Option.
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 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 of the
arbitrator provided for in Section 10 of the Agreement, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court and
of the arbitrator provided for in Section 10 of the Agreement. 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.
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12. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be an officer of the Company or if you shall resign by
written notice to each party. In the event of any such termination, the Company
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 the
arbitrator provided for in Section 10 of the Agreement or 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.
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 days' advance written notice to each of the other parties
hereto.
COMPANY: StratumOne Communications, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
PURCHASER: [PURCHASER]
_______________________________
_______________________________
ESCROW AGENT: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Attention: Xxxx Xxxxx
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.
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15
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,
STRATUMONE COMMUNICATIONS, INC.
a California corporation
By: _____________________________________
Its:_____________________________________
_________________________________________
ESCROW AGENT:
XXXXXX XXXXXXX XXXXXXXX & XXXXXX
By:____________________________________
Its: __________________________________
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ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to the above-referenced Federal
Tax Code, to include in taxpayer's gross income for the current taxable year,
the amount of any compensation taxable to taxpayer in connection with his
receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: [PURCHASER] SPOUSE:
ADDRESS:
IDENTIFICATION NO.: TAXPAYER SPOUSE:
TAXABLE YEAR: 19__
2. The property with respect to which the election is made is described as
follows: [TOTAL] shares (the "Shares") of the Common Stock of StratumOne
Communications, Inc. (the "Company").
3. The date on which the property was transferred is: _____________, 19__
4. The property is subject to the following restrictions:
The Shares may be repurchased by the Company, or its assignee, on certain
events. This right lapses with regard to a portion of the Shares over time.
5. The fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never lapse,
of such property is:
[AGGREGATE]
6. The amount (if any) paid for such property is:
[AGGREGATE]
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner.
Dated: _________________ Taxpayer: ____________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: _________________ Taxpayer: ____________________________
Spouse of Taxpayer
