EXHIBIT 10.19
INKTOMI CORPORATION
STOCK OPTION AGREEMENT
(AMENDED AND RESTATED MAY 15, 1997)
THIS AGREEMENT is made as of May 11, 1996 between Inktomi Corporation, a
California corporation (the "Company"), and _____________________ (the
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"Optionee").
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This Stock Option Agreement amends, restates and replaces the previous
Stock Option Agreement between the Company and the Optionee dated as of the
above date. This Stock Option Grant does not evidence a new stock option
granted to Optionee. The number of Shares and Exercise Price per Shares
reflected herein have been adjusted to give effect to the two for one forward
stock split effected by the Company in July 1996.
1. Option Grant. The Company hereby grants to Optionee an Option to
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purchase a total of ____________________ shares of Common Stock (the "Shares").
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2. Exercise Price; Method of Payment. The exercise price is $0.075 for
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each share of Common Stock. Payment of the purchase price shall be made by cash
or check.
3. Exercise of Option. This Option shall be exercisable during its term
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as follows:
3.1 Right to Exercise.
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(a) Subject to subsections 3.1(b), (c) and (d) below, this
Option is exercisable immediately, in whole or in part, conditioned upon
Optionee entering into a Restricted Stock Purchase Agreement substantially in
the form attached hereto as Exhibit B-1 (the "Restricted Stock Purchase
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Agreement") with respect to any unvested Option Shares. The Shares subject to
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this Option shall vest and/or be released from the Company's repurchase option,
as set forth in the Restricted Stock Purchase Agreement, according to the
following schedule: 24% of the total number of Shares subject to this Option
shall become vested and/or released on May 11, 1997, and an additional 2% of the
Shares shall become vested and/or released at the end of each full month
thereafter, until all Shares are vested and/or released, provided that (a)
Shares subject to this Option shall vest and/or be released from the Company's
repurchase option based on Employee's continued employment with or services to
the Company and (b) vested Shares shall not be subject to the Company's
repurchase option.
(b) This Option may not be exercised for a fraction of a Share.
(c) In the event of Optionee's death, disability or other
termination of employment or consulting relationship (as the case may be), the
exercise of the Option is governed by Sections 6 and 7 below, subject to the
limitations contained in subsection 3.1(d).
(d) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in Section 9 below.
(e) Optionee acknowledges and agrees that the vesting and/or
release of Shares pursuant to this Section 3 and pursuant to the Restricted
Stock Purchase Agreement (if applicable) is earned only by continuing
consultancy or employment at the will of the Company (not through the act of
being hired, being granted this option or acquiring shares hereunder). Optionee
further acknowledges and agrees that nothing in this Agreement or otherwise
shall confer upon Optionee any right with respect to continuation of employment
or consultancy by the Company, nor shall it interfere with Optionee's right or
the Company's right to terminate Optionee's employment or consultancy at any
time, with or without cause.
3.2 Method of Exercise. This Option shall be exercisable by written
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notice in the form of Exhibit A which shall state the election to exercise the
Option and the number of Shares in respect of which the Option is being
exercised. Such written notice shall be signed by Optionee and shall be
delivered in person or by certified mail to the President, Secretary or Chief
Financial Officer of the Company. The written notice shall be accompanied by
payment of the exercise price.
No shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
4. Optionee's Representations and Agreements.
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4.1 Investment Representations. By receipt of this Option, by its
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execution, and by its exercise in whole or in part, Optionee represents to the
Company that Optionee understands that:
(a) both this Option and any Shares purchased upon its exercise
are securities, the issuance by the Company of which requires compliance with
federal and state securities laws;
(b) these securities are made available to Optionee only on the
condition that Optionee makes the representations contained in this Section 4 to
the Company;
(c) Optionee has made a reasonable investigation of the affairs
of the Company sufficient to be well informed as to the rights and the value of
these securities;
(d) Optionee confirms the accuracy of all information provided
to the Company pursuant to Optionee's information questionnaire and understands
that the Company will rely on such information in making the securities
available to Optionee;
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(e) the securities have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), in reliance upon a specific
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exemption contained in the Act which depends upon Optionee's bona fide
investment intention in acquiring these securities; that Optionee's intention is
to hold these securities for Optionee's own benefit for an indefinite period;
that Optionee has no present intention of selling or transferring any part
thereof (recognizing that the Option is not transferable) and that there may be
certain restrictions on transfer of the Shares subject to the Option;
(f) Optionee is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions, including, among
other things: (1) the availability of certain public information about the
Company; (2) the resale occurring not less than one year after the party has
purchased, and made full payment for, within the meaning of Rule 144, the
securities to be sold (the "Holding Period"); and, in the case of an affiliate,
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or of a non-affiliate who has held the securities less than two years, (3) the
sale being made through a broker in a 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. Notwithstanding the foregoing, however, the Optionee understands
that if the Company qualifies under Rule 701 promulgated under the Securities
Act at the time of exercise of the Option, the issuance of securities to the
Optionee will be exempt from registration under the Securities Act by virtue of
Rule 701. In the event the Company thereafter 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 may be resold under Rule 144 without
compliance with certain provisions thereof, including the Holding Period.
(g) The certificate representing the Shares will bear a legend
prohibiting their transfer in the absence of their registration or the opinion
of counsel for the Company that registration is not required.
4.2 Market Stand Off Agreement. Optionee agrees in connection with
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an initial public offering of the Company's securities not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any shares of the Company's Common Stock for 180 days following the effective
date of the registration statement relating to such initial public offering.
Optionee further agrees, upon request of the Company or the underwriters
managing the initial public offering, to sign any additional document confirming
the foregoing.
5. Restrictions on Exercise. This Option may not be exercised if the
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issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law, rule or regulation, including any rule
promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law, rule or
regulation.
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6. Termination of Relationship. In the event of termination of Optionee's
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employment or consulting relationship (as applicable, and as reasonably
determined by the Company), Optionee may, but only within sixty (60) days after
the date Optionee ceases to be an employee or consultant of the Company (but in
no event later than the date of expiration of the term of this Option as set
forth in Section 9 below), exercise this Option to the extent that Optionee was
entitled to exercise it at the date of such termination. To the extent that
Optionee was not entitled to exercise this Option at the date of such
termination, or if Optionee does not exercise this Option within the time
specified herein, this Option shall terminate.
7. Death or Disability of Optionee. In the event of termination of
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Optionee's employment or consulting relationship (as applicable) as a result of
Optionee's permanent and total disability or death, this Option may be
exercised, but only within ninety (90) days from the date of termination of
employment or consulting relationship (but in no event later than the date of
expiration of the term of this Option as set forth in Section 9 below), to the
extent Optionee was entitled to exercise it at the date of such termination. To
the extent that Optionee was not entitled to exercise this Option at the date of
termination, or if Optionee does not exercise this Option within the time
specified herein, this Option shall terminate.
8. Non-Transferability of Option. This Option may not be transferred in
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any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
9. Term of Option. This Option may not be exercised more than ten (10)
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years from the date of grant of this Option, and may be exercised during such
term only in accordance with the terms of this Option.
10. Tax Consequences.
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10.1 General. Optionee understands that, upon exercise of this
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Option, Optionee may recognize income for tax purposes. The Optionee will be
treated as having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the fair market value of the Shares on
the date of exercise over the aggregate exercise price. In addition, if
Optionee is an employee, the Company will be required to withhold from
Optionee's compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise. Optionee has reviewed with the Optionee's own tax
advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. Optionee is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. Optionee understands that the Optionee (and not the Company) shall
be responsible for the Optionee's own tax liability that may arise as a result
of the transactions contemplated by this Agreement.
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10.2 Section 83(b) Election for Unvested Shares. With respect to
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exercise of the Option for unvested Shares, an election may be filed by Optionee
with the Internal Revenue Service and, if necessary, the proper state taxing
authorities, within 30 days of the purchase of the Shares, electing pursuant to
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Section 83(b) of the Internal Revenue Code of 1986, as amended (and similar
state tax provisions if applicable) to be taxed currently on any difference
between the purchase price of the Shares and their fair market value on the date
of purchase. This will result in a recognition of taxable income to the Optionee
on the date of exercise, measured by the excess, if any, of the fair market
value of the Shares, at the time the Option is exercised over the purchase price
for the Shares. Absent such an election, taxable income will be measured and
recognized by the Optionee at the time or times on which the Company's
repurchase option lapses. The Optionee is strongly encouraged to seek the
advice of his or her own tax consultants in connection with the purchase of the
Shares and the advisability of filing of the Election under Section 83(b) and
similar tax provisions. A form of Election under Section 83(b) is attached
hereto as Exhibit C-5 for reference.
OPTIONEE ACKNOWLEDGES THAT IT IS OPTIONEE'S SOLE RESPONSIBILITY AND NOT THE
COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF PARTICIPANT
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON OPTIONEE'S
BEHALF.
11. Adjustment for Stock Split. All references to the number of Shares
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and the purchase price of the Shares shall be appropriately adjusted to reflect
any stock split, stock dividend or other change in the Shares which may be made
by the Company after the date of this Agreement (other than the stock split
effected in July 1996 as indicated above).
12. General Provisions. This Agreement shall be governed by California
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law. This Agreement represents the entire agreement between the parties with
respect to the subject matter hereof and may be modified, amended or waived only
in writing signed by both parties.
DATE OF GRANT: May 11, 1996
INKTOMI CORPORATION OPTIONEE
By:
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(Signature)
Title:
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(Print Name)
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EXHIBIT A
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NOTICE OF EXERCISE OF STOCK OPTION
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TO: Inktomi Corporation
FROM:
DATE:
RE: Exercise of Stock Option
I hereby exercise my option to purchase _________________________ shares of
Common Stock at $______________ per share (total exercise price of
$__________________), effective today's date. This notice is given in
accordance with the terms of my Stock Option Agreement dated May 11, 1996 (as
amended and restated May 15, 1997). The option price and vested amount is in
accordance with Sections 2 and 3 of the Stock Option Agreement.
Attached is a check payable to Inktomi Corporation for the total exercise
price of the shares being purchased. The undersigned confirms the
representations made in Section 4 of the Stock Option Agreement.
Please prepare the stock certificate in the following name(s)
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If the stock is to be registered in a name other than your name, please so
advise the Company. The Stock Option Agreement requires the Company's approval
for registration in a name other than your name and requires certain agreements
from any joint owner.
Sincerely,
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(Signature)
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(Print or Type Name)
Letter and consideration
received on ____________, 19
By:
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EXHIBIT B-1
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RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made between _________________________ (the "Purchaser")
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and Inktomi Corporation (the "Company") as of __________________, 199__.
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RECITALS
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A. Pursuant to the exercise of the stock option granted to Purchaser on
May 11, 1996 and pursuant to the Stock Option Agreement (the "Option
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Agreement") by and between the Company and Purchaser with respect to such grant,
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which Option Agreement is hereby incorporated by reference, Purchaser has
elected by executing a Notice of Exercise (the "Exercise Agreement") to purchase
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shares which have not become vested under the vesting schedule set forth in the
Option Agreement ("Unvested Shares"). The Unvested Shares and the shares subject
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to the Option Agreement which have become vested are sometimes collectively
referred to herein as the "Shares."
B. As required by the Option Agreement, as a condition to Purchaser's
election to exercise the option, Purchaser must execute this Restricted Stock
Purchase Agreement, which sets forth the rights and obligations of the parties
with respect to Shares acquired upon exercise of the Option.
AGREEMENT
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1. REPURCHASE OPTION.
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(a) Repurchase Option. If Purchaser's employment or consulting
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relationship with the Company is terminated for any reason, including for cause,
death, and disability, the Company shall have the right and option to purchase
from Purchaser, or Purchaser's personal representative, as the case may be, all
or any portion of the Purchaser's then Unvested Shares as of the date of such
termination at the price paid by the Purchaser for such Shares (the "Repurchase
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Option").
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(b) Exercise. Upon the occurrence of a termination, the Company may
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exercise its Repurchase Option by delivering personally or by registered mail,
to Purchaser (or his transferee or legal representative, as the case may be),
within ninety (90) days of the termination, a notice in writing indicating the
Company's intention to exercise the Repurchase Option and setting forth a date
for closing not later than thirty (30) days from the mailing of such notice.
The closing shall take place at the Company's office. At the closing, the
holder of the certificates for the then Unvested Shares being transferred shall
deliver the stock certificate or certificates evidencing the Unvested Shares,
and the Company shall deliver the purchase price therefor.
(c) Termination. If the Company does not elect to exercise the
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Repurchase Option conferred above by giving the requisite notice within ninety
(90) days following the termination, the Repurchase Option shall terminate.
2. TRANSFERABILITY OF THE SHARES; ESCROW.
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(a) Transfer. Purchaser hereby authorizes and directs the secretary
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of the Company, or such other person designated by the Company, to transfer the
Unvested Shares as to which the Repurchase Option has been exercised from
Purchaser to the Company.
(b) Escrow. To insure the availability for delivery of Purchaser's
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Unvested Shares upon repurchase by the Company pursuant to the Repurchase Option
under Section 1, Purchaser hereby appoints the secretary, or any other person
designated by the Company as escrow agent, as its attorney-in-fact to sell,
assign and transfer unto the Company, such Unvested Shares, if any, repurchased
by the Company pursuant to the Repurchase Option and shall, upon execution of
this Agreement, deliver and deposit with the secretary of the Company, or such
other person designated by the Company, the share certificates representing the
initial Unvested Shares, together with the stock assignment duly endorsed in
blank, attached hereto as Exhibit B-2. The Unvested Shares and stock assignment
shall be held by the secretary in escrow, pursuant to the Joint Escrow
Instructions of the Company and Purchaser attached as Exhibit B-3 hereto, until
the Company exercises its Repurchase Option as provided in Section 1, until such
Unvested Shares are vested, or until such time as this Agreement no longer is in
effect. As a further condition to the Company's obligations under this
Agreement, the spouse of the Purchaser, if any, shall execute and deliver to the
Company the Consent of Spouse attached hereto as Exhibit B-4. Upon vesting of
the initial Unvested Shares, the escrow agent shall promptly deliver to the
Purchaser (upon request) the certificate or certificates representing such
Shares in the escrow agent's possession belonging to the Purchaser, and the
escrow agent shall be discharged of all further obligations hereunder; provided,
however, that the escrow agent shall nevertheless retain such certificate or
certificates as escrow agent if so required pursuant to other restrictions
imposed pursuant to this Agreement.
(c) No Liability. The Company, or its designee, shall not be liable
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for any act it may do or omit to do with respect to holding the Shares in escrow
and while acting in good faith and in the exercise of its judgment.
(d) Restrictions on Transfer. Transfer or sale of the Shares is
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subject to restrictions on transfer imposed by any applicable state and federal
securities laws. Any transferee shall hold such Shares subject to all the
provisions hereof and the Exercise Notice executed by the Purchaser with respect
to any Unvested Shares purchased by Purchaser and shall acknowledge the same by
signing a copy of this Agreement.
3. OWNERSHIP, VOTING RIGHTS, DUTIES. This Agreement shall not affect in
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any way the ownership, voting rights or other rights or duties of Purchaser,
except as specifically provided herein.
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4. LEGENDS. The share certificate evidencing the Shares shall be endorsed
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with the following legend (in addition to any other required legends):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AS SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY.
5. ADJUSTMENT FOR STOCK SPLIT. All references to the number of Shares and
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the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
6. NOTICES. Notices required hereunder shall be given in person or by
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registered mail to the address of Purchaser shown on the records of the Company,
and to the Company at its principal executive offices.
7. SURVIVAL OF TERMS. This Agreement shall apply to and bind Purchaser
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and the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
8. SECTION 83(b) ELECTIONS.
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(a) Election for Unvested Shares Purchased Pursuant to Nonqualified
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Stock Options. Purchaser hereby acknowledges that he or she has been informed
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that, with respect to the exercise of a nonqualified stock option for Unvested
Shares, that unless an election is filed by the Purchaser with the Internal
Revenue Service and, if necessary, the proper state taxing authorities, within
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30 days of the purchase of the Shares, electing pursuant to Section 83(b) of the
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Code (and similar state tax provisions if applicable) to be taxed currently on
any difference between the purchase price of the Shares and their Fair Market
Value on the date of purchase, there will be a recognition of taxable income to
the Purchaser, measured by 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 the 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
Exhibit B-5 for reference.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE RESPONSIBILITY AND NOT THE
COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF PURCHASER
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON PURCHASER'S
BEHALF.
9. TAX MATTERS. Purchaser has reviewed with his own tax advisors the
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federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this
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Agreement. Purchaser is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Purchaser
understands that he (and not the Company) shall be responsible for his own tax
liability that may arise as a result of Purchaser's investment or the
transactions contemplated by this Agreement.
10. FURTHER INSTRUMENTS. The parties agree to execute such further
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instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
11. HEADINGS. The captions and headings of this Agreement are included
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for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of
this Agreement.
12. ENTIRE AGREEMENT. The Stock Option Agreement, the Exercise Agreement,
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and this Restricted Stock Purchase Agreement, together with all exhibits to all
such documents, constitute the entire agreement and understanding of the parties
with respect to the subject matter of this Agreement, and supersede all prior
understandings and agreements, whether oral or written, between the parties
hereto with respect to the specific subject matter hereof. This Agreement may
only be amended, modified or waived in writing signed by both parties hereto.
13. GOVERNING LAW; SEVERABILITY. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of California as
such laws are applied to agreements between California residents entered into
and to be performed entirely within California, excluding that body of laws
pertaining to conflict of laws. If any provision of this Agreement is
determined by a court of law to be illegal or unenforceable, then such provision
will be enforced to the maximum extent possible and the other provisions will
remain fully effective and enforceable.
14. INTERPRETATIONS. Any dispute regarding the interpretation of this
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Agreement shall be submitted by Purchaser or the Company to Board of Directors
of the Company for review. The resolution of such a dispute by the Committee
shall be final and binding on the Company and Purchaser.
IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set
forth above.
INKTOMI CORPORATION PURCHASER
By:
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(Signature)
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(Please print name) (Please print name)
-----------------------------------
(Please print title)
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EXHIBIT B-2
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign and
transfer unto
________________________________________________________________________________
________________ (_____________) shares of the Common Stock of Inktomi
Corporation standing in my name of the books of said corporation represented by
Certificate No. _______ herewith and do hereby irrevocably constitute and
appoint _________________ to
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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 Inktomi Corporation and the undersigned dated
_____________, 19____.
Dated: _______________, 19_____
Signature:
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INSTRUCTIONS: 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 AS SET FORTH IN THE AGREEMENT, WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF THE PURCHASER.
EXHIBIT B-3
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JOINT ESCROW INSTRUCTIONS
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_________________________ , 19______
Corporate Secretary
Inktomi Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear :
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As Escrow Agent for both Inktomi Corporation (the "Company"), and the
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undersigned purchaser of stock of the Company (the "Purchaser"), you are hereby
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authorized and directed to hold the documents delivered to you pursuant to the
terms of that certain Restricted Stock Purchase Agreement ("Agreement") between
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the Company and the undersigned, 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 Company's
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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 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, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock
being purchased pursuant to the exercise of the Company's 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 Purchaser's
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 any applicable state blue sky
authority of any required applications for consent to, or notice of transfer
of, the securities. 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.
4. Upon written request of the Purchaser, but no more than once per
calendar year, unless the Company's 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 Company's repurchase option.
Within 120 days after cessation of Purchaser's continuous employment by or
services to 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 held or issued pursuant to the Agreement and not purchased by
the Company or its assignees pursuant to exercise of the Company's 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 the same to Purchaser and shall be discharged of all
further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith, and 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.
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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 an officer or agent 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 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: Inktomi Corporation
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Attention: Secretary
PURCHASER: _______________________________________
_______________________________________
_______________________________________
ESCROW AGENT: Corporate Secretary
Inktomi Corporation
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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.
18. These Joint Escrow Instructions shall be governed by, and construed
and enforced in accordance with, the laws of the State of California.
INKTOMI CORPORATION PURCHASER
By:
-------------------------------- --------------------------------
(Signature)
----------------------------------- --------------------------------
(Please print name) (Please print name)
-----------------------------------
(Please print title)
ESCROW AGENT
-----------------------------------
(Signature)
-----------------------------------
(Please print name)
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EXHIBIT B-4
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CONSENT OF SPOUSE
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I, ____________________, spouse of ____________, have read and approve the
foregoing Stock Option Agreement, Stock Option Exercise Agreement, Restricted
Stock Purchase Agreement and Escrow Agreement (collectively the "Agreements").
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In consideration of granting of the right to my spouse to purchase shares of
Inktomi Corporation, as set forth in the Agreements, I hereby appoint my spouse
as my attorney-in-fact in respect to the exercise of any rights under the
Agreements and agree to be bound by the provisions of the Agreements insofar as
I may have any rights in said Agreements or any shares issued pursuant thereto
under the community property laws 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 Agreements.
Dated: __________________, 19 __
--------------------------------
(Signature)
--------------------------------
(Please print name)
EXHIBIT B-5
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ELECTION UNDER SECTION 83(b)
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OF THE INTERNAL REVENUE CODE OF 1986
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The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income
for the current taxable year the amount of any compensation taxable to taxpayer
in connection with taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: SPOUSE:
ADDRESS:
IDENTIFICATION NO.: TAXPAYER: SPOUSE:
TAXABLE YEAR:
2. The property with respect to which the election is made is described as
follows: ___________ shares (the "Shares") of the Common Stock of Inktomi
Corporation (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 not be transferred and are subject to forfeiture under the
terms of an agreement between the taxpayer and the Company. These
restrictions lapse upon the satisfaction of certain conditions contained in
such agreement.
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: $______________________.
6. The amount (if any) paid for such property is: $______________________.
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
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except with the consent of the Commissioner.
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Dated: ___________________, 19____ ________________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: ___________________, 19____ ________________________________
Spouse of Taxpayer