EXHIBIT 99.2
LOUDEYE CORP.
2005 INCENTIVE AWARD PLAN
RESTRICTED STOCK AWARD GRANT NOTICE AND
RESTRICTED STOCK AWARD AGREEMENT
Loudeye Corp. (the "COMPANY"), pursuant to its 2005 Incentive Award Plan
(the "PLAN"), hereby grants to the individual listed below ("HOLDER"), the right
to purchase the number of shares of the Company's Common Stock set forth below
(the "SHARES") at the purchase price set forth below. This Restricted Stock
award is subject to all of the terms and conditions as set forth herein and in
the Restricted Stock Award Agreement attached hereto as Exhibit A (the
"RESTRICTED STOCK AGREEMENT") and the Plan, each of which are incorporated
herein by reference. Unless otherwise defined herein, the terms defined in the
Plan shall have the same defined meanings in this Grant Notice and the
Restricted Stock Agreement.
HOLDER: _________________________________________
GRANT DATE: _________________________________________
PURCHASE PRICE PER SHARE: $________________________________________
TOTAL NUMBER OF SHARES OF _________________________________________
RESTRICTED STOCK: shares
VESTING SCHEDULE: [Awards to vest quarterly]
By his or her signature and the Company's signature below, ▇▇▇▇▇▇ agrees
to be bound by the terms and conditions of the Plan, the Restricted Stock
Agreement and this Grant Notice. Holder has reviewed the Restricted Stock
Agreement, the Plan and this Grant Notice in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Grant Notice
and fully understands all provisions of this Grant Notice, the Restricted Stock
Agreement and the Plan. Holder hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator of the Plan upon
any questions arising under the Plan, this Grant Notice or the Restricted Stock
Agreement. If ▇▇▇▇▇▇ is married, his or her spouse has signed the Consent of
Spouse attached to this Grant Notice as Exhibit B.
LOUDEYE CORP.: HOLDER:
By: _______________________________ By: _______________________________
Print Name: _______________________ Print Name: _______________________
Title: ____________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Address: __________________________
Seattle, WA 98144 __________________________
EXHIBIT A
TO RESTRICTED STOCK AWARD GRANT NOTICE
RESTRICTED STOCK AWARD AGREEMENT
Pursuant to the Restricted Stock Award Grant Notice ("GRANT NOTICE") to
which this Restricted Stock Award Agreement (this "AGREEMENT") is attached,
Loudeye Corp. (the "COMPANY") has granted to Holder the right to purchase the
number of shares of Restricted Stock under the Company's 2005 Incentive Award
Plan (the "PLAN") indicated in the Grant Notice.
ARTICLE I
GENERAL
1.1 Defined Terms. Capitalized terms not specifically defined herein shall
have the meanings specified in the Plan and the Grant Notice.
1.2 Incorporation of Terms of Plan. The Shares are subject to the terms
and conditions of the Plan which are incorporated herein by reference.
ARTICLE II
GRANT OF RESTRICTED STOCK
2.1 Grant of Restricted Stock. In consideration of Holder's past and/or
continued employment with or service to the Company or its Subsidiaries and for
other good and valuable consideration, effective as of the Grant Date set forth
in the Grant Notice (the "GRANT DATE"), the Company irrevocably grants to Holder
the right to purchase the number of shares of Common Stock set forth in the
Grant Notice (the "SHARES"), upon the terms and conditions set forth in the Plan
and this Agreement.
2.2 Purchase Price. The purchase price of the Shares shall be as set forth
in the Grant Notice, without commission or other charge. The payment of the
purchase price shall be paid by cash or check.
2.3 Issuance of Shares. The issuance of the Shares under this Agreement
shall occur at the principal office of the Company simultaneously with the
execution of this Agreement by the parties or on such other date as the Company
and Holder shall agree (the "ISSUANCE DATE"). Subject to the provisions of
Article IV below, on the Issuance Date, the Company shall issue the Shares
(which shall be issued in Holder's name).
2.4 Conditions to Issuance of Stock Certificates. The Shares, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have been reacquired by the Company. Such Shares shall be
fully paid and nonassessable. The Company shall not be required to issue or
deliver any Shares prior to fulfillment of all of the following conditions:
(a) The admission of such Shares to listing on all stock exchanges
on which such Common Stock is then listed;
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, which the Administrator shall, in its absolute discretion, deem necessary
or advisable;
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Administrator shall, in its absolute
discretion, determine to be necessary or advisable;
(d) The lapse of such reasonable period of time following the
Issuance Date as the Administrator may from time to time establish for reasons
of administrative convenience; and
(e) The receipt by the Company of full payment for such shares,
including payment of all amounts which, under federal, state or local tax law,
the Company (or other employer corporation) is required to withhold upon
issuance of such Shares.
2.5 Rights as Stockholder. Except as otherwise provided herein, upon
delivery of the Shares to the escrow holder pursuant to Article IV, Holder shall
have all the rights of a stockholder with respect to said Shares, subject to the
restrictions herein, including the right to vote the Shares and to receive all
dividends or other distributions paid or made with respect to the Shares.
2.6 Consideration to the Company. In consideration of the issuance of the
Shares by the Company, ▇▇▇▇▇▇ agrees to render faithful and efficient services
to the Company or any Parent or Subsidiary. Nothing in the Plan or this
Agreement shall confer upon Holder any right to continue in the employ or
service of the Company or any Parent or Subsidiary or shall interfere with or
restrict in any way the rights of the Company and its Parents and Subsidiaries,
which rights are hereby expressly reserved, to discharge or terminate the
services of Holder at any time for any reason whatsoever, with or without Cause,
except to the extent expressly provided otherwise in a written agreement between
the Company, a Parent or a Subsidiary and Holder.
2.7 Assets or Securities Issued With Respect to Shares. Any and all cash
dividends paid on the Shares (or other securities at the time held in escrow
pursuant to Section 4.1 and the Joint Escrow Instructions) and any and all
shares of Stock, capital stock or other securities or other property received by
or distributed to Holder with respect to, in exchange for or in substitution of
the Shares as a result of any stock dividend, stock split, reverse stock split,
recapitalization, combination, reclassification, or similar change in the
capital structure of the Company shall also be subject to the Repurchase Option
(as defined in Section 3.1 below) and the restrictions on transfer in Section
3.4 below until such restrictions on the underlying Shares lapse or are removed
pursuant to this Agreement (or, if such Shares are no longer outstanding, until
such time as such Shares would have been released from the Company's Repurchase
Option pursuant to this Agreement). In addition, in the event of any merger,
consolidation, share exchange or reorganization affecting the Stock, including,
without limitation, a Change of Control, then any new, substituted or additional
securities or other property (including money paid other than as a regular cash
dividend) that is by reason of any such transaction received with respect to, in
exchange for or in substitution of the Shares shall also be subject to the
Repurchase Option (as defined in Section 3.1 below) and the restrictions on
transfer in Section 3.4 below until such restrictions on the underlying Shares
lapse or are removed pursuant to this Agreement (or, if such Shares are no
longer outstanding, until such time as such Shares would have been released from
the Company's Repurchase Option pursuant to this Agreement). Any such assets or
other securities received by or distributed to Holder with respect to, in
exchange for or in substitution of any Unreleased Shares shall be immediately
delivered to the Company to be held in escrow pursuant to Section 4.1.
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ARTICLE III
RESTRICTIONS ON SHARES
3.1 Repurchase Option. Subject to the provisions of Section 3.2 below, if
Holder experiences a Termination of Employment, Termination of Directorship or
Termination of Consultancy, as applicable, before all of the Shares are released
from the Company's Repurchase Option (as defined below), the Company shall, upon
the date of such termination (as reasonably fixed and determined by the
Company), have an irrevocable, exclusive option, but not the obligation, for a
period of ninety (90) days after the date Holder experiences a Termination of
Employment, Termination of Directorship or Termination of Consultancy, as
applicable, to repurchase all or any portion of the Unreleased Shares (as
defined below in Section 3.3) at such time (the "REPURCHASE OPTION") at the
original cash purchase price per share (the "REPURCHASE PRICE"). The Repurchase
Option shall lapse and terminate ninety (90) days after Holder experiences a
Termination of Employment, Termination of Directorship or Termination of
Consultancy, as applicable. The Repurchase Option shall be exercisable by the
Company by written notice to Holder or Holder's executor (with a copy to the
escrow agent appointed pursuant to Section 4.1 below) and shall be exercisable,
at the Company's option, by delivery to Holder or Holder's executor with such
notice of a check in the amount of the Repurchase Price times the number of
Shares to be repurchased (the "AGGREGATE REPURCHASE PRICE"). Upon delivery of
such notice and the payment of the Aggregate Repurchase Price, the Company shall
become the legal and 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. In the event the Company repurchases any Shares
under this Section 3.1, any assets or securities received by or distributed to
Holder with respect to, in exchange for or in substitution of such Shares and
held by the escrow agent pursuant to Section 4.1 and the Joint Escrow
Instructions shall be promptly paid by the escrow agent to the Company.
3.2 Release of Shares from Repurchase Restriction. The Shares shall be
released from the Company's Repurchase Option in accordance with the Vesting
Schedule set forth on the Grant Notice. Any of the Shares released from the
Company's Repurchase Option shall thereupon be released from the restrictions on
transfer under Section 3.4.
3.3 Unreleased Shares. Any of the Shares which, from time to time, have
not yet been released from the Company's Repurchase Option are referred to
herein as "UNRELEASED SHARES."
3.4 Restrictions on Transfer.
(a) Subject to Subsection 3.4(b), no Unreleased Shares or any interest or
right therein or part thereof shall be liable for the debts, contracts or
engagements of Holder or his or her successors in interest or shall be subject
to disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or
any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect.
(b) Notwithstanding any other provision in this Agreement, with the
consent of the Administrator, the Unreleased Shares may be transferred to
certain persons or entities related to Holder, including but not limited to
members of Holder's family, charitable institutes or trusts or other entities
whose beneficiaries or beneficial owners are members of Holder's family or to
such other persons or entities as may be expressly approved by the Administrator
(each a "PERMITTED TRANSFEREE"), pursuant to such conditions and procedures as
the Administrator may require.
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ARTICLE IV
ESCROW OF SHARES
4.1 Escrow of Shares. To insure the availability for delivery of ▇▇▇▇▇▇'s
Unreleased Shares upon repurchase by the Company pursuant to the Repurchase
Option under Section 3.1, Holder hereby appoints the Secretary of the Company,
or any other person designated by the Administrator as escrow agent, as his or
her attorney-in-fact to assign and transfer unto the Company, such Unreleased
Shares, if any, repurchased by the Company pursuant to the Repurchase Option
pursuant to Section 3.1 and any dividends or other distributions thereon, and
shall, upon execution of this Agreement, deliver and deposit with the Secretary
of the Company, or such other person designated by the Administrator, any share
certificates representing the Unreleased Shares, together with the stock
assignment duly endorsed in blank, attached to the Grant Notice as Exhibit C to
the Grant Notice. The Unreleased Shares and stock assignment shall be held by
the Secretary of the Company, or such other person designated by the
Administrator, in escrow, pursuant to the Joint Escrow Instructions of the
Company and Holder attached as Exhibit D to the Grant Notice, until the Company
exercises its Repurchase Option as provided in Section 3.1, until such
Unreleased Shares are released from the Company's Repurchase Option, or until
such time as this Agreement no longer is in effect. Upon release of the
Unreleased Shares, the escrow agent shall deliver to Holder the certificate or
certificates representing such Shares in the escrow agent's possession belonging
to Holder in accordance with the terms of the Joint Escrow Instructions attached
as Exhibit D to the Grant Notice, 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. If
the Shares are held in book entry form, then such entry will reflect that the
Shares are subject to the restrictions of this Agreement. If any dividends or
other distributions are paid on the Unreleased Shares held by the escrow agent
pursuant to this Section 4.1 and the Joint Escrow Instructions, such dividends
or other distributions shall also be subject to the restrictions set forth in
this Agreement and held in escrow pending release of the Unreleased Shares with
respect to which such dividends or other distributions were paid from the
Company's Repurchase Option.
4.2 Transfer of Repurchased Shares. ▇▇▇▇▇▇ hereby authorizes and directs
the Secretary of the Company, or such other person designated by the
Administrator, to transfer the Unreleased Shares as to which the Repurchase
Option has been exercised from Holder to the Company.
4.3 No Liability for Actions in Connection with Escrow. The Company, or
its designee, shall not be liable 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.
ARTICLE V
OTHER PROVISIONS
5.1 Adjustment for Stock Split. In the event of any stock dividend, stock
split, reverse stock split, recapitalization, combination, reclassification, or
similar change in the capital structure of the Company, the Administrator shall
make appropriate and equitable adjustments in the Unreleased Shares subject to
the Repurchase Option and the number of Shares, consistent with any adjustment
under Section 11.1 of the Plan. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to the Shares, to any and all
shares of capital stock or other securities which may be issued in respect of,
in exchange for, or in substitution of the Shares, and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof.
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5.2 Taxes. ▇▇▇▇▇▇ has reviewed with ▇▇▇▇▇▇'s own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated by the Grant Notice and this Agreement. Holder is
relying solely on such advisors and not on any statements or representations of
the Company or any of its agents. Holder understands that Holder (and not the
Company) shall be responsible for ▇▇▇▇▇▇'s own tax liability that may arise as a
result of this investment or the transactions contemplated by this Agreement.
Holder understands that Holder will recognize ordinary income for federal income
tax purposes under Section 83 of the Code. In this context, "restriction"
includes the right of the Company to repurchase the Shares pursuant to its
Repurchase Option set forth in Section 3.1. Holder understands that Holder may
elect to be taxed for federal income tax purposes at the time the Shares are
purchased rather than as and when the Repurchase Option lapses by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days from the date of purchase. A form of election under
Section 83(b) of the Code is attached to the Grant Notice as Exhibit ▇.
▇▇▇▇▇▇ ACKNOWLEDGES THAT IT IS ▇▇▇▇▇▇'S SOLE RESPONSIBILITY AND NOT THE
COMPANY'S TO TIMELY FILE THE ELECTION UNDER SECTION 83(b), EVEN IF HOLDER
REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON HOLDER'S
BEHALF.
5.3 Withholding. The Company or any Subsidiary shall have the authority
and the right to deduct or withhold, or require Holder to remit to the Company,
an amount sufficient to satisfy federal, state, local and foreign taxes
(including Holder's FICA obligation) required by law to be withheld with respect
to any taxable event concerning Holder arising as a result of this Agreement.
The Committee may in its sole discretion and in satisfaction of the foregoing
requirement (i) have the Company withhold Shares otherwise issuable under this
Agreement (or allow the return of Shares) having a Fair Market Value equal to
the sums required to be withheld or (ii) require Holder to remit payment to the
Company of a sum equal to the amount required to satisfy Holder's federal,
state, local and foreign income and payroll tax liabilities accrued in
connection with such taxable event. Notwithstanding any other provision of this
Agreement or the Plan, the number of Shares which may be withheld (or which may
be repurchased from the Holder of such Shares within six months (or such other
period as may be determined by the Committee) after such Shares were acquired by
the Holder from the Company) in order to satisfy Holder's federal, state, local
and foreign income and payroll tax liabilities with respect to the vesting of
the Shares under this Agreement shall be limited to the number of Shares which
have a Fair Market Value on the date of withholding or repurchase equal to the
aggregate amount of such tax liabilities based on the minimum statutory
withholding rates for federal, state, local and foreign income tax and payroll
tax purposes that are applicable to such supplemental taxable income.
5.4 Limitations Applicable to Section 16 Persons. Notwithstanding any
other provision of the Plan or this Agreement, if Holder is subject to Section
16 of the Exchange Act, the Plan, the Shares and this Agreement shall be subject
to any additional limitations set forth in any applicable exemptive rule under
Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the
Exchange Act) that are requirements for the application of such exemptive rule.
To the extent permitted by applicable law, this Agreement shall be deemed
amended to the extent necessary to conform to such applicable exemptive rule.
5.5 Administration. The Administrator shall have the power to interpret
the Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret, amend or revoke any such rules. All actions taken and all
interpretations and determinations made by the Administrator in good faith shall
be final and binding upon Holder, the Company and all other interested persons.
No member of the Administrator shall be personally liable for any action,
determination or interpretation made in good faith with respect to the
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Plan, this Agreement or the Shares. In its absolute discretion, the Board may at
any time and from time to time exercise any and all rights and duties of the
Administrator under the Plan and this Agreement.
5.6 Restrictive Legends and Stop-Transfer Orders.
(a) Any share certificate(s) evidencing the Shares issued hereunder
shall be endorsed with the following legend and any other legend required by any
applicable federal and state securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
REPURCHASE IN FAVOR OF THE COMPANY AND MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF A RESTRICTED STOCK AWARD AGREEMENT
BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY.
(b) ▇▇▇▇▇▇ agrees that, in order to ensure compliance with the
restrictions referred to herein, the Company may issue appropriate "stop
transfer" instructions to its transfer agent, if any, and that, if the Company
transfers its own securities, it may make appropriate notations to the same
effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books
any shares of Common Stock 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 of Common Stock or to accord the right to vote or pay dividends
to any purchaser or other transferee to whom such shares shall have been so
transferred.
5.7 Notices. Any notice to be given under the terms of this Agreement to
the Company shall be addressed to the Company in care of the Secretary of the
Company, and any notice to be given to Holder shall be addressed to Holder at
the address given beneath ▇▇▇▇▇▇'s signature on the Grant Notice. By a notice
given pursuant to this Section 5.6, either party may hereafter designate a
different address for notices to be given to that party. Any notice shall be
deemed duly given when sent via email or when sent by certified mail (return
receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
5.8 Titles. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
5.9 Governing Law; Severability. This Agreement shall be administered,
interpreted and enforced under the laws of the State of Delaware without regard
to conflicts of laws thereof. Should any provision of this Agreement be
determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
5.10 Conformity to Securities Laws. Holder acknowledges that the Plan is
intended to conform to the extent necessary with all provisions of the
Securities Act and the Exchange Act and any and all regulations and rules
promulgated by the Securities and Exchange Commission thereunder, and state
securities laws and regulations. Notwithstanding anything herein to the
contrary, the Plan shall be administered, and the Shares are to be issued, only
in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.
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5.11 Amendments. This Agreement may not be modified, amended or terminated
except by an instrument in writing, signed by ▇▇▇▇▇▇ and by a duly authorized
representative of the Company.
5.12 No Employment Rights. If Holder is an Employee, nothing in the Plan
or this Agreement shall confer upon Holder any right to continue in the employ
of the Company or any Subsidiary or shall interfere with or restrict in any way
the rights of the Company and its Subsidiaries, which are expressly reserved, to
discharge Holder at any time for any reason whatsoever, with or without cause,
except to the extent expressly provided otherwise in a written agreement between
the Company and Holder.
5.13 Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon ▇▇▇▇▇▇ and his or her heirs, executors, administrators, successors and
assigns.
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EXHIBIT B
TO RESTRICTED STOCK AWARD GRANT NOTICE
CONSENT OF SPOUSE
I, ____________________, spouse of _______________, have read and approve
the foregoing Agreement. In consideration of issuing to my spouse the shares of
the common stock of Loudeye Corp. 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 of the common stock of
Loudeye Corp. 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 Agreement.
Dated: _______________, _____
___________________________________
Signature of Spouse
EXHIBIT C
TO RESTRICTED STOCK AWARD GRANT NOTICE
STOCK ASSIGNMENT
FOR VALUE RECEIVED, the undersigned, _____________________, hereby sells,
assigns and transfers unto LOUDEYE CORP., a Delaware corporation,
_____________________ shares of the Common Stock of LOUDEYE CORP., a Delaware
corporation, standing in its name of the books of said corporation represented
by Certificate No. _____ herewith and do hereby irrevocably constitute and
appoint ___________________ 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 Award Agreement between LOUDEYE CORP. and the undersigned dated
_________________.
Dated: _______________, ____
___________________________________
[Name of Holder]
INSTRUCTIONS: Please do not fill in the 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 Restricted Stock Award Agreement,
without requiring additional signatures on the part of Holder.
EXHIBIT D
TO RESTRICTED STOCK AWARD GRANT NOTICE
JOINT ESCROW INSTRUCTIONS
__________________________
Secretary
Loudeye Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
As escrow agent (the "ESCROW AGENT") for both Loudeye Corp., a Delaware
corporation (the "COMPANY"), and the undersigned recipient of stock of the
Company (the "HOLDER"), you are hereby authorized and directed to hold in escrow
the documents delivered to you pursuant to the terms of that certain Restricted
Stock Award Agreement ("AGREEMENT") between the Company and the undersigned (the
"ESCROW"), including the stock certificate and the Assignment in Blank, 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
Repurchase Option as defined in the Agreement), the Company shall give to Holder
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. ▇▇▇▇▇▇ 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. As of the date of closing of the repurchase indicated in such notice,
you are directed (a) to date the stock assignments necessary for the repurchase
and transfer in question, (b) to fill in the number of shares being repurchased
and transferred, and (c) to deliver the same, together with the certificate
evidencing the shares of stock to be repurchased and transferred, to the Company
or its assignee.
3. Holder 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. ▇▇▇▇▇▇
does hereby irrevocably constitute and appoint you as ▇▇▇▇▇▇'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 and the Agreement, Holder shall exercise all
rights and privileges of a stockholder of the Company while the stock is held by
you.
4. Upon written request of ▇▇▇▇▇▇, but no more than once per calendar
month, unless the Company's Repurchase Option has been exercised, you will
deliver to Holder a certificate or certificates representing so many shares of
stock as are not then subject to the Repurchase Option. Within one hundred
twenty (120) days after any voluntary or involuntary termination of Holder's
services to the Company for any or no reason, you will deliver to Holder a
certificate or certificates representing the aggregate number of shares held or
issued pursuant to the Agreement and not repurchased pursuant to the Repurchase
Option set forth in Section 3.1 of the Agreement.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to ▇▇▇▇▇▇, you
shall deliver all of the same to Holder 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 Holder 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 expiration of any rights under any
applicable state, federal or local statute of limitations or similar statute or
regulation 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. The Company will reimburse you
for any reasonable attorneys' fees with respect thereto.
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 ▇▇▇▇▇▇ 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.
D-2
15. Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of the Secretary of the
Company, and any notice to be given to Holder or you shall be addressed to the
address given beneath Holder's and your signatures on the signature page to this
Agreement. By a notice given pursuant to this Section 15, any party may
hereafter designate a different address for notices to be given to that party.
Any notice which is required to be given to Holder shall, if Holder is then
deceased, be given to ▇▇▇▇▇▇'s designated beneficiary, if any by written notice
under this Section 15. Any notice shall be deemed duly given when sent via email
or when sent by certified mail (return receipt requested) and deposited (with
postage prepaid) in a post office or branch post office regularly obtained by
the United States Postal Service.
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 Delaware, without
regard to conflicts of law thereof.
IN WITNESS WHEREOF, the parties have executed these Joint Escrow
Instructions as of the date first written above.
LOUDEYE CORP.
By: _______________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HOLDER:
___________________________________
[Name of Holder]
Address: __________________________
__________________________
ESCROW AGENT:
By: ________________________________
Secretary, Loudeye Corp.
Address:
D-3
EXHIBIT E
TO RESTRICTED STOCK AWARD GRANT NOTICE
FORM OF 83(B) ELECTION AND INSTRUCTIONS
These instructions are provided to assist you if you choose to make an election
under Section 83(b) of the Internal Revenue Code, as amended, with respect to
the shares of common stock, par value $0.01, of Loudeye Corp. transferred to
you. PLEASE CONSULT WITH YOUR PERSONAL TAX ADVISOR AS TO WHETHER AN ELECTION OF
THIS NATURE WILL BE IN YOUR BEST INTERESTS IN LIGHT OF YOUR PERSONAL TAX
SITUATION.
THE EXECUTED ORIGINAL OF THE SECTION 83(b) ELECTION MUST BE FILED WITH THE
INTERNAL REVENUE SERVICE NOT LATER THAN 30 DAYS AFTER THE DATE THE SHARES WERE
TRANSFERRED TO YOU. PLEASE NOTE: THERE IS NO REMEDY FOR FAILURE TO FILE ON TIME.
THE STEPS OUTLINED BELOW SHOULD BE FOLLOWED TO ENSURE THE ELECTION IS MAILED AND
FILED CORRECTLY AND IN A TIMELY MANNER. ALSO, PLEASE NOTE: IF YOU MAKE THE
SECTION 83(b) ELECTION, THE ELECTION IS IRREVOCABLE.
1. Complete Section 83(b) election form (attached as Attachment 1) and make
four (4) copies of the signed election form. (Your spouse, if any, should
sign the Section 83(b) election form as well.)
2. Prepare the cover letter to the Internal Revenue Service (sample letter
attached as Attachment 2).
3. Send the cover letter with the originally executed Section 83(b) election
form and one (1) copy via certified mail, return receipt requested to the
Internal Revenue Service at the address of the Internal Revenue Service
where you file your personal tax returns. We suggest that you have the
package date-stamped at the post office. The post office will provide you
with a white certified receipt that includes a dated postmark. Enclose a
self-addressed, stamped envelope so that the Internal Revenue Service may
return a date-stamped copy to you. However, your postmarked receipt is
your proof of having timely filed the Section 83(b) election if you do not
receive confirmation from the Internal Revenue Service.
4. One (1) copy must be sent to Loudeye Corp. for its records and one (1)
copy must be attached to your federal income tax return for the applicable
calendar year.
5. Retain the Internal Revenue Service file stamped copy (when returned) for
your records.
Please consult your personal tax advisor for the address of the office of the
Internal Revenue Service to which you should mail your election form.
ATTACHMENT 1 TO EXHIBIT E
ELECTION UNDER INTERNAL REVENUE CODE SECTION 83(B)
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 shares (the "SHARES") of
Common Stock, par value $0.01 per share, of Loudeye Corp., a Delaware
corporation (the "COMPANY").
1. The name, address and taxpayer identification number of the
undersigned taxpayer are:
_________________________________
_________________________________
_________________________________
SSN: ____________________________
The name, address and taxpayer identification number of the
Taxpayer's spouse are (complete if applicable):
_________________________________
_________________________________
_________________________________
SSN: ____________________________
2. Description of the property with respect to which the election is
being made: ___________ shares of Common Stock, par value $0.01 per
share, of the Company.
3. The date on which the property was transferred was ________________.
4. The taxable year to which this election relates is calendar year
________.
5. Nature of restrictions to which the property is subject:
The Shares are subject to repurchase at their original purchase price if
unvested as of the date of termination of employment, directorship or
consultancy with the Company.
6. The fair market value at the time of transfer (determined without
regard to any lapse restrictions, as defined in Treasury Regulation Section
1.83-3(a)) of the Shares was $_______ per Share.
7. The amount paid by the taxpayer for Shares was $________ per share.
8. A copy of this statement has been furnished to the Company.
Dated:____________, 200__ Taxpayer Signature ______________________
The undersigned spouse of ▇▇▇▇▇▇▇▇ joins in this election. (Complete if
applicable).
Dated:____________, 200__ Spouse's Signature ______________________
ATTACHMENT 2 TO EXHIBIT E
SAMPLE COVER LETTER TO INTERNAL REVENUE SERVICE
[Date]
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Internal Revenue Service
[Address where taxpayer files returns]
Re: Election under Section 83(b) of the Internal Revenue Code of
1986 Taxpayer: ________________________________________________
Taxpayer's Social Security Number: ____________________________
Taxpayer's Spouse: ____________________________________________
Taxpayer's Spouse's Social Security Number: ___________________
Ladies and Gentlemen:
Enclosed please find an original and one copy of an Election under Section
83(b) of the Internal Revenue Code of 1986, as amended, being made by the
taxpayer referenced above. Please acknowledge receipt of the enclosed materials
by stamping the enclosed copy of the Election and returning it to me in the
self-addressed stamped envelope provided herewith.
Very truly yours,
__________________________________
Enclosures
cc: Loudeye Corp.