RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (this "AGREEMENT") is made and
entered into as of July __, 1997 (the "EFFECTIVE DATE") between AimQuest
Corporation (the "COMPANY"), a California corporation, and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("PURCHASER").
1. PURCHASE OF SHARES. On the Effective Date and subject to the terms
and conditions of this Agreement, Purchaser hereby purchases from the
Company, and Company hereby sells to Purchaser, an aggregate of Seventy
Thousand (70,000) shares of the Company's common stock (the "SHARES") at an
aggregate purchase price of $17,500 (the "PURCHASE PRICE") or $0.25 per Share
(the "PURCHASE PRICE PER SHARE"). As used in this Agreement, the term
"Shares" refers to the Shares purchased under this Agreement and includes all
securities received (a) in replacement of the Shares, (b) as a result of
stock dividends or stock splits in respect of the Shares, and (c) in
replacement of the Shares in a recapitalization, merger, reorganization or
the like.
2. PAYMENT OF PURCHASE PRICE; CLOSING.
(a) DELIVERIES BY PURCHASER. Purchaser hereby delivers to the
Company the full Purchase Price in cash in the amount of $17,500. Purchaser
also hereby delivers to the Company: (i) a blank Stock Power and Assignment
Separate from Stock Certificate in the form of EXHIBIT 1 attached hereto (the
"STOCK POWERS"), both executed by Purchaser (and Purchaser's spouse, if any),
and (ii) if Purchaser is married, a Consent of Spouse in the form of EXHIBIT
2 attached hereto (the "SPOUSE CONSENT") duly executed by Purchaser's spouse.
(b) DELIVERIES BY THE COMPANY. Upon its receipt of the entire
Purchase Price and all the documents to be executed and delivered by
Purchaser to the Company under Section 2(a), the Company will issue a duly
executed stock certificate evidencing the Shares in the name of Purchaser,
with such certificate to be placed in escrow as provided in Section 8 until
expiration or termination of both the Company's Repurchase Option and Right
of First Refusal described in Sections 5 and 6.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to the Company that:
(a) PURCHASE FOR OWN ACCOUNT FOR INVESTMENT. Purchaser is
purchasing the Shares for Purchaser's own account for investment purposes
only and not with a view to, or for sale in connection with, a distribution
of the Shares within the meaning of the Securities Act of 1933, as amended
(the "1933 ACT"). Purchaser has no present intention of selling or otherwise
disposing of all or any portion of the Shares and no one other than Purchaser
has any beneficial ownership of any of the Shares.
(b) ACCESS TO INFORMATION. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably
considers important in making the decision to purchase the Shares, and
Purchaser has had ample opportunity to ask questions of the Company's
representatives concerning such matters and this investment.
(c) UNDERSTANDING OF RISKS. Purchaser is fully aware of: (i) the
highly speculative nature of the investment in the Shares; (ii) the financial
hazards involved; (iii) the lack of liquidity of the Shares and the
restrictions on transferability of the Shares (E.G., that Purchaser may not
be able to sell or dispose of the Shares or use them as collateral for
loans); (iv) the qualifications and backgrounds of the management of the
Company; and (v) the tax consequences of investment in the Shares.
(d) PURCHASER'S QUALIFICATIONS. Purchaser has a preexisting
personal or business relationship with the Company and/or certain of its
officers and/or directors of a nature and duration sufficient to make
Purchaser aware of the character, business acumen and general business and
financial circumstances of the Company and/or such officers and directors. By
reason of Purchaser's business or financial experience, Purchaser is capable
of evaluating the merits and risks of this investment, has the ability to
protect Purchaser's own interests in this transaction and is financially
capable of bearing a total loss of this investment.
(e) NO GENERAL SOLICITATION. At no time was Purchaser presented
with or solicited by any publicly issued or circulated newspaper, mail,
radio, television or other form of general advertising or solicitation in
connection with the offer, sale and purchase of the Shares.
(f) COMPLIANCE WITH SECURITIES LAWS. Purchaser understands and
acknowledges that, in reliance upon the representations and warranties made
by Purchaser herein, the Shares are not being registered with the Securities
and Exchange Commission ("SEC") under the 1933 Act or being qualified under
the California Corporate Securities Law of 1968, as amended (the "LAW"), but
instead are being issued under an exemption or exemptions from the
registration and qualification requirements of the 1933 Act and the Law which
impose certain restrictions on Purchaser's ability to transfer the Shares.
(g) RESTRICTIONS ON TRANSFER. Purchaser understands that Purchaser
may not transfer any Shares unless such Shares are registered under the 1933
Act or qualified under the Law or unless, in the opinion of counsel to the
Company, exemptions from such registration and qualification requirements are
available. Purchaser understands that only the Company may file a
registration statement with the SEC or the California Commissioner of
Corporations and that the Company is under no obligation to do so with
respect to the Shares. Purchaser has also been advised that exemptions from
registration and qualification may not be available or may not permit
Purchaser to transfer all or any of the Shares in the amounts or at the times
proposed by Purchaser.
(h) RULE 144. In addition, Purchaser has been advised that SEC
Rule 144 promulgated under the 1933 Act, which permits certain limited sales
of unregistered securities, is not presently available with respect to the
Shares and, in any event, requires that the Shares be
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held for a minimum of one year (decreasing to one year effective April 29,
1997), and in certain cases two years, after they have been purchased AND
PAID FOR (within the meaning of Rule 144), before they may be resold under
Rule 144.
4. COMPLIANCE WITH CALIFORNIA SECURITIES LAWS. THE SALE OF THE
SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT, IF NOT YET QUALIFIED WITH
THE CALIFORNIA COMMISSIONER OF CORPORATIONS AND NOT EXEMPT FROM SUCH
QUALIFICATION, IS SUBJECT TO SUCH QUALIFICATION, AND THE ISSUANCE OF SUCH
SECURITIES, AND THE RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR
TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE IS EXEMPT. THE RIGHTS OF
THE PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH
QUALIFICATION BEING OBTAINED OR AN EXEMPTION BEING AVAILABLE.
5. COMPANY'S REPURCHASE OPTION. The Company has the option to
repurchase all or a portion of the Unvested Shares (as defined below) on the
terms and conditions set forth in this Section (the "REPURCHASE OPTION") if
Purchaser ceases to be employed by the Company (as defined herein) for any
reason, or no reason, including without limitation Purchaser's death,
disability, voluntary resignation or termination by the Company with or
without cause.
(a) DEFINITION OF "EMPLOYED BY THE COMPANY"; "TERMINATION DATE".
For purposes of this Agreement, Purchaser will be considered to be "EMPLOYED
BY THE COMPANY" if the Board of Directors of the Company determines that
Purchaser is rendering substantial services as an officer, employee,
consultant or independent contractor to the Company or to any parent,
subsidiary or affiliate of the Company. In case of any dispute as to whether
Purchaser is employed by the Company, the Board of Directors of the Company
will have discretion to determine whether Purchaser has ceased to be employed
by the Company or any parent, subsidiary or affiliate of the Company and the
effective date on which Purchaser's employment terminated (the "TERMINATION
DATE").
(b) UNVESTED AND VESTED SHARES. Shares that are not Vested Shares
(as defined in this Section) are "UNVESTED SHARES". On the Effective Date all
Seventy Thousand (70,000) of the Shares will be Unvested Shares. If Purchaser
has been continuously employed by the Company at all times from the Effective
Date until July 8, 1998 (the "FIRST VESTING DATE"), then on the First Vesting
Date Twenty-Five percent (25%) of the Shares will become Vested Shares; and
thereafter, for so long (and only for so long) as Purchaser remains
continuously employed by the Company at all times after the First Vesting
Date, an additional 6.25% of the Shares will become Vested Shares upon the
expiration of each full calendar quarter elapsed after the First Vesting Date.
(c) ACCELERATION OF VESTING ON ACQUISITION. In the event of an
Acquisition (as defined in Section 20 below) if the services of Purchaser are
terminated by the Company or its successor (or any Parent or wholly-owned
Subsidiary of either) without Cause (as defined in Section 20 below) within
one year after the closing of such Acquisition, vesting of the Shares
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will accelerate in full, such that all of the Shares will become Vested
Shares upon the Termination Date. Notwithstanding the foregoing, if
accelerated vesting of any Shares would preclude accounting for the
Acquisition as a pooling of interests and such accounting treatment is relied
upon by the acquirer in the Acquisition, then vesting would not be
accelerated to the extent of such preclusion, and no Shares will become
Vested Shares after the Termination Date.
(d) ADJUSTMENTS. The number of Shares that are Vested Shares or
Unvested Shares will be proportionally adjusted to reflect any stock
dividend, stock split, reverse stock split or recapitalization of the common
stock of the Company occurring after the Effective Date.
(e) EXERCISE OF REPURCHASE OPTION AT ORIGINAL PRICE. At any time
within thirty (30) days after the Termination Date, the Company may elect to
repurchase any or all of the Unvested Shares by giving Purchaser written
notice of exercise of the Repurchase Option. The Company and/or its
assignee(s) will then have the option to repurchase from Purchaser (or from
Purchaser's personal representative as the case may be) any or all of the
Unvested Shares at the Purchaser's original Purchase Price Per Share (as
adjusted to reflect any stock dividend, stock split, reverse stock split or
recapitalization of the common stock of the Company occurring after the
Effective Date).
(f) PAYMENT OF REPURCHASE PRICE. The repurchase price payable to
purchase Unvested Shares upon exercise of the Repurchase Option will be
payable, at the option 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 to such assignee) or by any combination thereof. The
repurchase price will be paid without interest within sixty (60) days after
the Termination Date.
(g) RIGHT OF TERMINATION UNAFFECTED. Nothing in this Agreement
will be construed to limit or otherwise affect in any manner whatsoever the
right or power of the Company (or any parent, subsidiary or affiliate of the
Company) to terminate Purchaser's employment at any time for any reason or no
reason, with or without cause.
6. RIGHT OF FIRST REFUSAL. Unvested Shares may not be sold or
otherwise transferred by Purchaser without the Company's prior written
consent. Before any Vested Shares held by Purchaser or any transferee of such
Shares (either being sometimes referred to herein as the "HOLDER") may be
sold or otherwise transferred (including without limitation a transfer by
gift or operation of law), the Company and/or its assignee(s) will have a
right of first refusal to purchase the Shares to be sold or transferred (the
"OFFERED 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 will
deliver to the Company a written notice (the "NOTICE") stating: (i) the
Holder's bona fide intention to sell or otherwise transfer the Offered
Shares; (ii) the name of each proposed purchaser or other transferee
("PROPOSED TRANSFEREE"); (iii) the number of Offered Shares to be transferred
to each Proposed Transferee; (iv) the bona fide cash price or other
consideration for which the Holder proposes to transfer the Offered Shares
(the "OFFERED PRICE"); and (v) that the Holder will offer to
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sell the Offered Shares to the Company and/or its assignee(s) at the Offered
Price as provided in this Section.
(b) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within thirty
(30) days after the date of the Notice, the Company and/or its assignee(s)
may, by giving written notice to the Holder, elect to purchase all (but not
less than all) of the Offered Shares proposed to be transferred to any one or
more of the Proposed Transferees named in the Notice, at the purchase price
determined in accordance with subsection (c) below.
(c) PURCHASE PRICE. The purchase price for the Offered Shares
purchased under this Section will be the Offered Price. If the Offered Price
includes consideration other than cash, then the value of the non-cash
consideration as determined in good faith by the Company's Board of Directors
will conclusively be deemed to be the cash equivalent value of such non-cash
consideration.
(d) PAYMENT. Payment of the purchase price for Offered Shares will
be payable, at the option of the Company and/or its assignee(s) (as
applicable), by check or by cancellation of all or a portion of any
outstanding indebtedness of the Holder to the Company (or to such assignee,
in the case of a purchase of Offered Shares by such assignee) or by any
combination thereof. The purchase price will be paid without interest within
sixty (60) days after the Company's receipt of the Notice, or, at the option
of the Company and/or its assignee(s), in the manner and at the time(s) set
forth in the Notice.
(e) HOLDER'S RIGHT TO TRANSFER. If all of the Offered 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 Holder may sell or otherwise transfer such Offered 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: (i) any such sale
or other transfer is effected in compliance with all applicable securities
laws; and (ii) the Proposed Transferee agrees in writing that the provisions
of this Section will continue to apply to the Offered Shares in the hands of
such Proposed Transferee. If the Offered Shares described in the Notice are
not transferred to the Proposed Transferee within such 120 day period, then a
new Notice must be given to the Company, and the Company will again be
offered the Right of First Refusal before any Shares held by the Holder may
be sold or otherwise transferred.
(f) EXEMPT TRANSFERS. Notwithstanding anything to the contrary in
this Section, the following transfers of Shares will be exempt from the Right
of First Refusal: (i) the transfer of any or all of the Shares during
Purchaser's lifetime by gift or on Purchaser's death by will or intestacy to
Purchaser's "immediate family" (as defined below) or to a trust for the
benefit of Purchaser or Purchaser's immediate family, provided that each
transferee or other recipient agrees in a writing satisfactory to the Company
that the provisions of this Section will continue to apply to the transferred
Shares in the hands of such transferee or other recipient; (ii) any transfer
of Shares made pursuant to a statutory merger or statutory consolidation of
the Company with or into another corporation or corporations (except that the
Right of First Refusal will
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continue to apply thereafter to such Shares, in which case the surviving
corporation of such merger or consolidation shall succeed to the rights or
the Company under this Section unless the agreement of merger or
consolidation expressly otherwise provides); or (iii) any transfer of Shares
pursuant to the winding up and dissolution of the Company. As used herein,
the term "IMMEDIATE FAMILY" will mean Purchaser's spouse, lineal descendant
or antecedent, father, mother, brother or sister, adopted child or
grandchild, or the spouse of any child, adopted child, grandchild or adopted
grandchild of Purchaser.
(g) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First
Refusal will terminate as to all Shares on the effective date 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 SEC under the
1933 Act (other than a registration statement relating solely to the issuance
of common stock pursuant to a business combination or an employee incentive
or benefit plan).
(h) ENCUMBRANCES ON VESTED SHARES. Purchaser may ▇▇▇▇▇ ▇ ▇▇▇▇ or
security interest in, or pledge, hypothecate or encumber Vested Shares only
if each party to whom such lien or security interest is granted, or to whom
such pledge, hypothecation or other encumbrance is made, agrees in a writing
satisfactory to the Company that: (i) such lien, security interest, pledge,
hypothecation or encumbrance will not apply to such Vested Shares after they
are acquired by the Company and/or its assignees) under this Section; and
(ii) the provisions of this Section will continue to apply to such Vested
Shares in the hands of such party and any transferee of such party. Purchaser
may not ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest in, or pledge, hypothecate or
encumber, any Unvested Shares.
7. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
Agreement, Purchaser will have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Purchaser
delivers payment of the Purchase Price until such time as Purchaser disposes
of the Shares or the Company and/or its assignee(s) exercise(s) the
Repurchase Option or Right of First Refusal. Upon an exercise of the
Repurchase Option or the Right of First Refusal, Purchaser will have no
further rights as a holder of the Shares so purchased upon such exercise,
except the right to receive payment for the Shares so purchased in accordance
with the provisions of this Agreement, and Purchaser will promptly surrender
the stock certificate(s) evidencing the Shares so purchased to the Company
for transfer or cancellation.
8. ESCROW. As security for Purchaser's faithful performance of this
Agreement, Purchaser agrees, immediately upon receipt of the stock
certificate(s) evidencing the Shares, to deliver such certificate(s),
together with the Stock Powers 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 other designee of the Company ("ESCROW HOLDER"),
who is hereby appointed to hold such certificate(s) and Stock Powers 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. Escrow Holder will act solely for the Company as its agent and not
as a fiduciary. Purchaser and the Company agree that Escrow Holder will not
be liable to any party to this Agreement (or to any other party) for any
actions or omissions unless Escrow Holder is grossly
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negligent or intentionally fraudulent in carrying out the duties of Escrow
Holder under this Section. Escrow Holder may rely upon any letter, notice or
other document executed by any signature purported to be genuine and may rely
on the advice of counsel and obey any order of any court with respect to the
transactions contemplated by this Agreement. The Shares will be released from
escrow upon termination of both the Repurchase Option and the Right of First
Refusal.
9. TAX CONSEQUENCES. Purchaser hereby acknowledges that Purchaser has
been informed that, unless an election is filed by the Purchaser 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 Section 83(b) of the Internal Revenue 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 Vested
Shares, at the time they cease to be Unvested Shares, over the purchase price
for such Shares. Purchaser represents that Purchaser has consulted any tax
consultant(s) Purchaser deems advisable in connection with Purchaser's
purchase of the Shares and 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 3 for reference. PURCHASER HEREBY ASSUMES ALL
RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING ANY TAXES RESULTING FROM
SUCH ELECTION OR FOR FAILING TO FILE THE ELECTION AND PAYING TAXES RESULTING
FROM THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE UNVESTED SHARES.
10. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
(a) LEGENDS. Purchaser understands and agrees that the Company
will place the legends set forth below or similar legends on any stock
certificate(s) evidencing the Shares, together with any other legends that
may be required by state or federal securities laws, the Company's Articles
of Incorporation or Bylaws, any other agreement between Purchaser and the
Company or any agreement between Purchaser and any third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
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INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON PUBLIC RESALE, TRANSFER, RIGHT OF
REPURCHASE AND RIGHT OF FIRST REFUSAL OPTIONS HELD BY THE ISSUER
AND/OR ITS ASSIGNEE(S) AS SET FORTH IN A FOUNDER'S RESTRICTED
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 PUBLIC SALE AND TRANSFER RESTRICTIONS AND
THE RIGHT OF REPURCHASE AND RIGHT OF FIRST REFUSAL ARE BINDING
ON TRANSFEREES OF THESE SHARES.
(b) STOP-TRANSFER INSTRUCTIONS. Purchaser agrees that, in order to
ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate "stop-transfer" instructions to its transfer
agent, if any, and if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
(c) REFUSAL TO TRANSFER. The Company will not be required (i) 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 (ii) 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 have been so transferred.
11. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with any
registration of the Company's securities under the 1933 Act that, upon the
request of the Company or the underwriters managing any registered public
offering of the Company's securities, Purchaser will not sell or otherwise
dispose of any Shares without the prior written consent of the Company or
such managing underwriters, as the case may be, for a period of time not to
exceed 180 days after the effective date of such registration requested by
such managing underwriters and subject to all restrictions as the Company or
the managing underwriters may specify for employee-shareholders generally.
12. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
the Shares will be subject to and conditioned upon compliance by the Company
and
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Purchaser with all applicable state and federal laws and regulations and with
all applicable requirements of any stock exchange or automated quotation
system on which the Company's common stock may be listed or quoted at the
time of such issuance or transfer.
13. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement, including its rights to repurchase Shares under the
Repurchase Option and the Right of First Refusal. This Agreement will be
binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer herein set forth, this
Agreement will be binding upon Purchaser and Purchaser's heirs, executors,
administrators, successors and assigns.
14. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the internal laws of the State of 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.
15. NOTICES. Any notice required or permitted hereunder will be given
in writing and will be deemed effectively given upon personal delivery, three
(3) days after deposit in the United States mail by certified or registered
mail (return receipt requested), one (1) business day after its deposit with
any return receipt express courier (prepaid), or one (1) business day after
transmission by telecopier, addressed to the other party at its address (or
facsimile number, in the case of transmission by telecopier) as shown below
its signature to this Agreement, or to such other address as such party may
designate in writing from time to time to the other party.
16. 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.
17. HEADINGS. The captions and headings of this Agreement are included
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.
18. ENTIRE AGREEMENT. This Agreement, together with all its Exhibits,
constitutes the entire agreement and understanding of the parties with
respect to the subject matter of this Agreement, and supersedes all prior
understandings and agreements, whether oral or written, between the parties
hereto with respect to the specific subject matter hereof.
19. TITLE TO SHARES. The exact spelling of the name(s) under which
Purchaser will take title to the Shares is:
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Purchaser desires to take title to the Shares as follows:
[ ] Individual, as separate property
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[ ] Husband and wife, as community property
[ ] Joint Tenants
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[ ] Alone or with spouse as trustee(s) of the following trust (including
date):
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[ ] Other; please specify:
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Purchaser's social security number is:
20. CERTAIN DEFINITIONS
20.1 "ACQUISITION" means:
(a) a merger or consolidation in which the Company is not the
surviving corporation (other than a merger or consolidation with a wholly
owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
the stockholders of the Company or their relative stock holdings);
(b) a merger in which the Company is the surviving corporation but
after which the stockholders of the Company (other than any stockholder which
merges (or which owns or controls another corporation which merges) with the
Company in such merger) cease to own at least 90% of the issued and
outstanding capital stock or other equity interests of the Company;
(C) the sale of all or substantially all of the assets of the
Company as a going concern in a single transaction or series of related
transactions; or
(d) the sale or transfer of a majority of the outstanding shares
of the Company by the stockholders of the Company in a single transaction or
a series of related transactions other than market transactions to unrelated
purchaser.
20.2 "CAUSE" for termination will exist at any time after the
happening of one or more of the following events:
(a) a failure or refusal to comply in any material respect with
the reasonable policies, standards or regulations of the Company;
(b) a failure or refusal in any material respect, faithfully or
diligently, to perform the duties previously set by the Company or the
customary duties of employment (whether due to ill health, disability or
otherwise);
(c) unprofessional, unethical or fraudulent conduct or conduct
that materially discredits the Company or is materially detrimental to the
reputation, character or standing of the Company;
(d) dishonest conduct or a deliberate attempt to do injury to the
Company;
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(e) material breach of the terms of any invention assignment or
confidentiality agreement with the Company, including, without limitation,
theft or misappropriation of the Company's proprietary information;
(f) an unlawful or criminal act which would reflect badly on the
Company in the Company's reasonable judgment; or
(g) death.
The term "Company," as used in this paragraph, includes the Company and
any successor to the Company (and either of their Parents and wholly owned
Subsidiaries, if any).
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in duplicate by its duly authorized representative and Purchaser has executed
this Agreement in duplicate, as of the Effective Date.
AIMQUEST CORPORATION PURCHASER
By:
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Name: Hong Chen
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Title: President Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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LIST OF EXHIBITS
Exhibit 1: Stock Power and Assignment Separate from Stock Certificate
Exhibit 2: Spousal Consent
Exhibit 3: Election Under Section 83(b) of the Internal Revenue Code
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EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock
Purchase Agreement dated as of July __, 1997, (the "AGREEMENT"), the
undersigned hereby sells, assigns and transfers unto _____________________,
__________ shares of the common stock of AimQuest Corporation, a California
corporation (the "COMPANY"), standing in the undersigned's name on the books
of the Company represented by Certificate No(s). ____ delivered herewith, and
does hereby irrevocably constitute and appoint the Secretary of the Company
as the undersigned's attorney-in-fact, with full power of substitution, to
transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE
USED AS AUTHORIZED BY THE AGREEMENT AND THE EXHIBITS THERETO.
Dated: ______________, 199__
PURCHASER
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(Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Please Print Name)
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(Spouse's Signature, if any)
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(Please Print Spouse's Name)
INSTRUCTION: Please do NOT fill in any blanks other than the signature line.
The purpose of this Stock Power and Assignment is to enable the Company
and/or its assignee(s) to acquire the shares upon exercise of its "Repurchase
Option" and/or "Right of First Refusal" set forth in the Agreement without
requiring additional signatures on the part of the Purchaser or Purchaser's
Spouse.
EXHIBIT 2
CONSENT OF SPOUSE
I, the undersigned, am the spouse of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("PURCHASER"). I have read and hereby consent to and approve all the terms
and conditions of: the Restricted Stock Purchase Agreement (the "AGREEMENT")
dated July __, 1997 between Purchaser and AimQuest Corporation, a California
corporation (the "COMPANY"), pursuant to which Purchaser has purchased
Seventy Thousand (70,000) shares of the Company's Common Stock (the "SHARES").
In consideration of the Company granting my spouse the right to
purchase the Shares under the Agreement, I hereby agree to be irrevocably
bound by all the terms and conditions of the Agreement (including but not
limited to the Company's Repurchase Option, the Right of First Refusal and
the market standoff agreements contained therein) and further agree that any
community property interest I may have in the Shares will be similarly bound
by the Agreement.
I hereby appoint Purchaser as my attorney-in-fact, to act in my
name, place and stead with respect to any amendment of the Agreement and with
respect to the making and filing of an election under Internal Revenue Code
Section 83(b) in connection with the purchase of the Shares.
Dated: _____________, 1997
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Signature of Spouse
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Name of Spouse
EXHIBIT 3
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, to include in gross income for the Taxpayer's current
taxable year 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, as compensation for services.
1. TAXPAYER'S NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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TAXPAYER'S ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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SOCIAL SECURITY NUMBER:
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2. The property with respect to which the election is made is described as
follows: Seventy Thousand (70,000) shares of Common Stock of AimQuest
Corporation, a California corporation (the "COMPANY"), which is Taxpayer's
employer or the corporation for whom the Taxpayer performs services.
3. The date on which the shares were transferred was July __, 1997 and this
election is made for calendar year 1997.
4. The shares are subject to the following restrictions: 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.
5. The fair market value of the shares (without regard to restrictions other
than restrictions which by their terms will never lapse) was $0.25 per
share at the time of transfer.
6. The amount paid for such shares was $0.25 per share.
7. The Taxpayer has submitted a copy of this statement to the Company.
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. THE ELECTION CANNOT BE
REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: July __, 1997
Taxpayer's Signature