Exhibit 4.2
FORM OF RESTRICTED STOCK PURCHASE AGREEMENT
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This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is made as
of __________________, 2001 by and between MJBC CORP., a Delaware corporation
(the "Company"), and ___________ (the "Purchaser").
1. Purchase of Shares.
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1.1 Purchase. The Purchaser hereby purchases, and the Company
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hereby sells to the Purchaser, ___________________ (______) shares (the
"Shares") of the Company's common stock, par value $0.0001 per share (the
"Common Stock") at a purchase price of One-Half of One Cent ($0.005) per share,
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for an aggregate purchase price _________________ ($_____) (the "Purchase
Price").
1.2 Payment. Concurrently with the execution of this Agreement,
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the Purchaser shall pay the Purchase Price for the Shares. The Purchaser shall
also deliver to the Secretary of the Company a duly executed blank Assignment
Separate from Certificate (in the form attached hereto as Exhibit A) and any
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additional documents required by the Company as a condition for the purchase.
1.3 Delivery of Certificates. The certificates representing the
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Shares purchased hereunder and subject to the Company's Repurchase Right under
Article 5 below shall be held in escrow by the Secretary of the Company as
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provided in Article 7 below.
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2. Securities Law Compliance.
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2.1 Exemption From Registration. The Shares have not been
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registered under the Securities Act of 1933, as amended (the "1933 Act") and are
being issued to the Purchaser in reliance upon the exemption from such
registration provided by Section 4(2) of the 1933 Act based on the
representations and warranties made by the Purchaser herein.
2.2 Restricted Securities.
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(a) The Purchaser hereby confirms that the Purchaser has
been informed that the Shares are "restricted securities" under the 1933 Act and
may not be resold or transferred unless the Shares are first registered under
the federal securities laws or unless an exemption from such registration is
available. Accordingly, the Purchaser hereby acknowledges that the Purchaser is
prepared to hold the Shares for an indefinite period of time.
(b) The Purchaser is aware of the adoption of Rule 144 by
the Commission, promulgated under the 1933 Act, which permits limited public
resales of securities acquired in a nonpublic offering, subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the issuer, the sale
being through a broker in an unsolicited "broker's transaction" and the amount
of securities being sold during any three (3) month period not exceeding
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specified limitations. The Purchaser is aware that Rule 144 of the Commission
under the 1933 Act is not presently available to exempt the sale of the Shares
from the registration requirements of the 1933 Act.
The Purchaser further represents that he or she understands that at the time he
or she wishes to sell the Shares there may be no public market upon which to
make such a sale, and that, even if such a public market exists for the
Company's Common Stock, the Company may not satisfy the current public
information requirement of Rule 144 or other conditions under Rule 144 which are
required of the Company. As a result of the foregoing, the Purchaser understands
that he or she may be precluded from selling the securities under Rule 144.
(c) The Purchaser represents (i) that prior to acquisition
of the Shares, the Purchaser acquired sufficient information about the Company
to reach an informed knowledgeable decision to acquire the Shares; (ii) the
Purchaser has such knowledge and experience in financial and business matters as
to make him or her capable of evaluating the risks of the prospective investment
and to make an informed investment decision and (iii) the Purchaser is able to
bear the economic risk of his or her investment in the Shares. The Purchaser
agrees not to make, without the prior written consent of the Company, any public
offering or sale of the Shares although permitted to do so pursuant to Rule
144(k) promulgated under the 1933 Act, until the earlier of the date on which
the Company effects its initial registered public offering pursuant to the 1933
Act or the date on which it becomes a registered company pursuant to section
12(g) of the Securities and Exchange Act of 1934.
2.3 Disposition of Shares. The Purchaser hereby agrees that the
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Purchaser shall not make any disposition of the Shares (other than a permitted
transfer under Section 4.1 below) unless and until:
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(a) such Purchaser shall have notified the Company of the
proposed disposition and provided a written summary of the terms and conditions
of the proposed disposition;
(b) such Purchaser shall have complied with all
requirements of this Agreement applicable to the disposition of the Shares; and
(c) such Purchaser, if requested by the Company, shall
have provided the Company an opinion of counsel in form and substance
satisfactory to the Company, that (i)the proposed disposition does not require
registration of the Shares under the 1933 Act or (ii) all appropriate action
necessary for compliance with the registration requirements of the 1933 Act or
of any exemption from registration available under the 1933 Act (including Rule
144) has been taken.
The Company shall not be required (x) to transfer on its books any
Shares that have been sold or transferred in violation of the provisions of this
Article 2 nor (y) to treat as the owner of the Shares, or otherwise to accord
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voting or dividend rights to, any transferee to whom the Shares have been
transferred in contravention of this Agreement.
2.4 Restrictive Legends. In order to reflect the restrictions
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on the disposition of the Shares, the stock certificates for the Shares will be
endorsed with restrictive legends, including one or both of the following
legends:
(a) "The securities represented by this certificate have
not been registered or qualified under the Securities Act of 1933 or the
securities laws of any state, and
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may be offered and sold only if registered and qualified pursuant to federal and
state securities laws or if the Company is provided an opinion of counsel
satisfactory to the Company that registration and qualification under federal
and state securities laws is not required."
(b) If required by the authorities of any state in
connection with the issuance of the Shares, the legend or legends required by
such state authorities shall also be endorsed on all such certificates.
3. Special Provisions.
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3.1 Stockholder Rights. Until such time as the Company actually
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exercises its repurchase rights under this Agreement, the Purchaser (or any
successor in interest) shall have all the rights of a stockholder (including
voting and dividend rights) with respect to the Shares, including the Shares
held in escrow under Article 7 below, subject, however, to the transfer
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restrictions of Article 4 below.
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3.2 Section 83(b) Election. The Purchaser understands that under
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Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), the
difference between the Purchase Price paid for the Shares and the fair market
value of such Shares on the date any forfeiture restrictions applicable to such
Shares lapse will be reportable as ordinary income at that time. For this
purpose, the term "forfeiture restrictions" includes the right of the Company to
repurchase the Shares under Article 5 below. The Purchaser understands that he
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or she may elect to be taxed at the time the Shares are acquired hereunder to
the extent the fair market value of the Shares differs from the Purchase Price
rather than when such Shares cease to be subject to such forfeiture
restrictions, by filing an election under Section 83(b) of the Code with the
I.R.S. within thirty (30) days after the date of purchase hereunder. The form
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for making this election is attached hereto as Exhibit B. The Purchaser
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understands that failure to make this filing within such thirty (30) day period
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will result in the recognition of ordinary income by the Purchaser (in the event
the fair market value of the Shares increases after the date of purchase) as the
forfeiture restrictions lapse.
3.3 Market Stand-Off.
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(a) In connection with any underwritten public offering by
the Company of its equity securities pursuant to an effective registration
statement filed under the 1933 Act, including the Company's initial public
offering, the Purchaser shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the purchase of, or otherwise dispose
or transfer for value or agree to engage in any of the foregoing transactions
with respect to any Shares without the prior written consent of the Company or
its underwriters, for such period of time after the effective date of such
registration statement as may be requested by the Company or such underwriters
(not to exceed one hundred eighty (180) days). This Section 3.3 shall only
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remain in effect for the two (2) year period following the effective date of the
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Company's initial public offering.
(b) The Purchaser shall be subject to the market stand-off
provisions of this Section 3.3 only if the officers and directors of the Company
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are also subject to similar arrangements.
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(c) In the event of any stock dividend, stock split,
recapitalization, or other change affecting the Company's outstanding Common
Stock effected without receipt of consideration, then any new, substituted, or
additional securities distributed with respect to the Shares shall be
immediately subject to the provisions of this Section 3.3, to the same extent
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the Shares are at such time covered by such provisions.
3.4 Stop Transfer. In order to enforce the provisions of
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Section 3.3 above, the Company may impose stop-transfer instructions with
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respect to the Shares until the end of the applicable stand-off period.
4. Transfer Restrictions.
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4.1 Restriction on Transfer. The Purchaser shall not transfer,
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assign, encumber, or otherwise dispose of any of the Shares that are subject to
the Company's Repurchase Right under Article 5 below. In addition, Shares that
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are released from the Repurchase Right shall not be transferred, assigned,
encumbered, or otherwise made the subject of disposition in contravention of the
Company's First Refusal Right under Article 6 below; provided, however, that
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such restrictions on transfer shall not be applicable if the Purchaser receives
prior written consent from the Company to (i) a gratuitous transfer of the
Shares made to the Purchaser's spouse or issue, including adopted children, or
to a trust for the exclusive benefit of the Purchaser or the Purchaser's spouse
or issue; (ii) a transfer of title to the Shares effected pursuant to the
Purchaser's will or the laws of intestate succession; or (iii) a transfer to the
Company in pledge as security for any purchase-money indebtedness incurred by
the Purchaser in connection with the acquisition of the Shares.
4.2 Transferee Obligations. Each person (other than the Company)
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to whom the Shares are transferred by means of one of the permitted transfers
specified in Section 4.1 above, must, as a condition precedent to such transfer,
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acknowledge in writing to the Company that such person is bound by the
provisions of this Agreement and that the transferred shares are subject to (i)
both the Company's Repurchase Right and the Company's First Refusal Right
granted hereunder and (ii) the market stand-off provisions of Section 3.3 above,
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to the same extent such shares would be so subject if retained by the Purchaser.
4.3 Definition of Owner. For purposes of Articles 5, 6 and 7
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below, the term "Owner" shall include the Purchaser and all subsequent holders
of the Shares who derive their chain of ownership through a permitted transfer
from the Purchaser in accordance with Section 4.1 above.
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5. Repurchase Right.
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5.1 Grant. The Company is hereby granted the right (the
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"Repurchase Right"), exercisable at any time during the sixty (60) day period
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following the date the Purchaser ceases for any reason to be a Service Provider
to the Company, to repurchase at the Purchase Price all or (at the discretion of
the Company and with the consent of the Purchaser) any portion of the Shares in
which the Purchaser has not acquired a vested interest in accordance with
Section 5.3 below (the "Unvested Shares"). For purposes of this Agreement, the
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Purchaser shall be deemed to be a "Service Provider" to the Company for so long
as the Purchaser renders
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periodic services to the Company or one or more of its parent or subsidiary
corporations as an employee, director or consultant.
5.2 Exercise of the Repurchase Right. The Repurchase Right shall
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be exercisable by written notice delivered to the Owner of the Unvested Shares
prior to the expiration of the sixty (60) day period specified in Section 5.1
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above. The notice shall indicate the number of Unvested Shares to be repurchased
and the date on which the repurchase is to be effected, such date to be not more
than thirty (30) days after the date of notice. To the extent one or more
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certificates representing the Unvested Shares may have been previously delivered
out of escrow to the Owner, then the Owner shall, prior to the close of business
on the date specified for the repurchase, deliver to the Secretary of the
Company the certificates representing the Unvested Shares to be repurchased,
properly endorsed for transfer. The Company shall, concurrently with the receipt
of such stock certificates, pay to the Owner in cash or cash equivalents
(including the cancellation of any purchase-money indebtedness), an amount equal
to the Purchase Price previously paid for the Unvested Shares that are to be
repurchased.
5.3 Termination of the Repurchase Right.
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(a) The Repurchase Right shall terminate with respect to
any Unvested Shares for which it is not timely exercised under Section 5.2
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above. In addition, the Repurchase Right shall terminate with respect to any and
all Shares in which the Purchaser vests in accordance with the schedule set
forth in Section 5.3(b) below. Accordingly, provided the Purchaser continues to
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be a Service Provider to the Company, the Purchaser shall acquire a vested
interest in, and the Repurchase Right shall lapse with respect to, the Shares in
accordance with the vesting schedule set forth in Section 5.3(b) below:
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(b) Measured from February 27, 2001 (the "Vesting
Measurement Date"), the Purchaser shall acquire a vested interest in, and the
Repurchase Right shall lapse (i) with respect to one-fourth (1/4) of the Shares
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on the first (1st) anniversary of the Vesting Measurement Date; and (ii) with
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respect to the remaining Unvested Shares, in a series of thirty-six (36)
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successive monthly installments each equal to one-thirty-sixth (1/36) of the
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Unvested Shares, such that all Shares shall become vested on the fourth (4/th/)
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anniversary of the Vesting Measurement Date. All Shares as to which the
Repurchase Right lapses shall, however, continue to be subject to (x) the First
Refusal Right under Article 6 below, and (y) the market stand-off provisions of
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Section 3.3 above.
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5.4 Fractional Shares. No fractional shares shall be repurchased
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by the Company. Accordingly, should the Repurchase Right extend to a fractional
share at the time the Purchaser ceases to be a Service Provider, then such
fractional share shall be added to any fractional share in which the Purchaser
is at such time vested in order to make one whole vested share no longer subject
to the Repurchase Right.
5.5 Additional Shares or Substituted Securities. In the event of
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any stock dividend, stock split, recapitalization or other change affecting the
Company's outstanding Common Stock as a class effected without receipt of
consideration, then any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend) which is
by reason of any such transaction distributed with respect to the Shares shall
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be immediately subject to the Repurchase Right, but only to the extent the
Shares are at the time covered by such right. Appropriate adjustments to reflect
the distribution of such securities or property shall be made to the number of
Shares hereunder and to the price per share to be paid upon the exercise of the
Repurchase Right in order to reflect the effect of any such transaction upon the
Company's capital structure; provided, however, that the aggregate Purchase
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Price shall remain the same.
5.6 Vesting Acceleration Event. In the event of the occurrence of a
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Vesting Acceleration Event (defined below), then the Unvested Shares Repurchase
Right shall automatically terminate in its entirety, and the Purchaser shall
acquire a vested interest in all of the Shares immediately upon the completion
of such Vesting Acceleration Event; provided, however, in the event of the
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occurrence of any of the events described in subsections (a), (b) and (c) below
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(each a "Corporate Transaction"), the Unvested Share Repurchase Right shall not
be affected (e.g., such right shall not lapse or otherwise terminate), if,
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following the consummation of such Corporate Transaction, the Company's
stockholders of record immediately prior to such Corporate Transaction hold more
than fifty percent (50%) of the voting power of the surviving or acquiring
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entity. For purposes of this Section 5.6, a "Vesting Acceleration Event" is
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defined as any of the following:
(a) the acquisition of the Company by another entity by means of
any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation but excluding any merger
effected exclusively for the purpose of changing the domicile of the Company);
(b) the sale, transfer or other disposition of all or
substantially all of the assets of the Company;
(c) a sale of all or substantially all of the capital stock of
the Company; or
(d) the Purchaser's death or permanent and total disability, as
defined in Title 26, Section 22(e)(3) of the Internal Revenue Code (26
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U.S.C.(s).22(e)(3)).
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6. Right of First Refusal.
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6.1 Grant. The Company is hereby granted the right of first refusal
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(the "First Refusal Right"), exercisable in connection with any proposed sale or
other transfer of the Shares in which the Purchaser has vested in accordance
with Article 5 above. For purposes of this Article 6, the term "transfer" shall
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include any assignment, pledge, encumbrance or other disposition for value of
the Shares intended to be made by the Owner, but shall not include any of the
permitted transfers under Section 4.1 above.
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6.2 Notice of Intended Disposition. In the event the Owner desires to
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accept a bona fide third-party offer for any or all of the Shares (the shares
subject to such offer to be hereinafter called, for purposes of this Article 6,
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the "Target Shares"), the Owner shall promptly (i) deliver to the Secretary of
the Company written notice (the "Disposition Notice") of the offer and the basic
terms and conditions thereof, including the proposed purchase price, and
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(ii) provide satisfactory proof that the disposition of the Target Shares to the
third-party offeror would not contravene the provisions of Articles 2 and 3
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above.
6.3 Exercise of Right.
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(a) The Company (or its assignees) shall, for a period of thirty
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(30) days following receipt of the Disposition Notice, have the right to
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repurchase any or all of the Target Shares specified in the Disposition Notice
upon substantially the same terms and conditions specified therein. Such right
shall be exercisable by written notice (the "Exercise Notice") delivered to the
Owner prior to the expiration of the thirty (30) day exercise period. If such
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right is exercised with respect to all the Target Shares specified in the
Disposition Notice, then (i) the Company (or its assignees) shall effect the
repurchase of the Target Shares, including payment of the purchase price, not
more than five (5) business days after delivery of the Exercise Notice; and (ii)
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at the time of such repurchase, the Owner shall deliver to the Company the
certificates representing the Target Shares to be repurchased, properly endorsed
for transfer. If any of the Target Shares are at the time held in escrow under
Article 7 below, the certificates for such shares shall automatically be
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released from escrow and surrendered to the Company for cancellation. The Target
Shares so purchased shall thereupon be cancelled and cease to be issued and
outstanding shares of the Company's Common Stock.
(b) In the event that the purchase price specified in the
Disposition Notice is payable in property other than cash or evidences of
indebtedness, the Company (or its assignees) shall have the right to pay the
purchase price in the form of cash equal in amount to the value of such
property. If the Owner and the Company (or its assignees) cannot agree on such
cash value within ten (10) days after the Company's receipt of the Disposition
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Notice, the valuation shall be made by an appraiser of recognized standing
mutually selected by the Owner and the Company (or its assignees); provided,
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however, that if the Owner and the Company cannot agree on an appraiser within
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twenty (20) days after the Company's receipt of the Disposition Notice, each
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shall select an appraiser of recognized standing and the two appraisers shall
designate a third appraiser of recognized standing, whose appraisal shall be
determinative of such value. The cost of such appraisal shall be shared equally
by the Owner and the Company. The closing shall then be held on the latter of
(i) the fifth (5/th) business day following delivery of the Exercise Notice or
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(ii) the fifteenth (15/th) day after such cash valuation shall have been made.
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6.4 Non-Exercise of Right. In the event the Exercise Notice is not
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given to the Owner within thirty (30) days following the date of the Company's
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receipt of the Disposition Notice, the Owner shall have a period of thirty (30)
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days thereafter in which to sell or otherwise dispose of the Target Shares upon
terms and conditions (including the purchase price) no more favorable to the
third-party purchaser than those specified in the Disposition Notice; provided,
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however, that any such sale or disposition must not contravene the provisions of
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Article 2 above. If any of the Target Shares are at the time held in escrow
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under Article 7 below, the certificates for such shares shall automatically be
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released from escrow and surrendered to the Owner. The third-party purchaser
shall acquire the Target Shares free and clear of all the terms and provisions
of this Agreement (including the Company's Repurchase Right under Article 5
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above and the First Refusal Right under this Article 6). If the Owner does not
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sell or otherwise dispose of the Target Shares within the specified thirty (30)
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day period, the Company's First Refusal
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Right shall continue to apply to any subsequent disposition of the Target Shares
by the Owner until such right lapses in accordance with Section 6.7 below.
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6.5 Partial Exercise of Right. In the event the Company (or its
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assignees) makes a timely exercise of the First Refusal Right with respect to a
portion, but not all, of the Target Shares specified in the Disposition Notice,
the Owner shall have the option, exercisable by written notice to the Company
delivered within thirty (30) days after the date of the Disposition Notice, to
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effect the sale of the Target Shares pursuant to one of the following
alternatives: (i) sale or other disposition of all the Target Shares to a
third-party purchaser in compliance with the requirements of Section 6.4 above,
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as if the Company did not exercise the First Refusal Right hereunder; or (ii)
sale to the Company (or its assignees) of the portion of the Target Shares which
the Company (or its assignees) has elected to purchase, such sale to be effected
in substantial conformity with the provisions of Section 6.3 above. Failure of
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the Owner to deliver timely notification to the Company under this Section 6.5
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shall be deemed to be an election by the Owner to sell the Target Shares
pursuant to clause (i) above.
6.6 Recapitalization.
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(a) In the event of any stock dividend, stock split,
recapitalization or other transaction affecting the Company's outstanding Common
Stock as a class effected without receipt of consideration, then any new,
substituted or additional securities or other property which is by reason of
such transaction distributed with respect to the Shares shall be immediately
subject to the Company's First Refusal Right hereunder, but only to the extent
the Shares are at the time covered by such right.
(b) In the event of a Corporate Transaction (as defined in
Section 5.6 above), the Company's First Refusal Right shall remain in full force
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and effect and shall apply to the new capital stock or other property received
in exchange for the Shares in consummation of the Corporate Transaction, but
only to the extent the Shares are at the time covered by such right.
6.7 Lapse. The First Refusal Right under this Article 6 shall lapse
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and cease to have effect upon the earliest to occur of (i) the first date on
which shares of the Company's Common Stock are held of record by more than five
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hundred (500) persons; (ii) the determination by the Company's Board of
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Directors that a public market exists for the outstanding shares of the
Company's Common Stock; or (iii) the closing of a firm commitment underwritten
public offering pursuant to an effective registration statement under the 1933
Act, covering the offer and sale of the Company's Common Stock.
6.8 Legend. In addition to the legends required by Section 2.4 above,
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all certificates representing Shares subject to the Company's Right of
Repurchase and the Right of First Refusal shall be endorsed with the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE
COMPANY AND THE INITIAL HOLDER HEREOF. SUCH AGREEMENT PROVIDES
FOR CERTAIN RESTRICTIONS
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ON TRANSFER OF THE SECURITIES, INCLUDING RIGHTS OF FIRST REFUSAL UPON
AN ATTEMPTED TRANSFER OF THE SECURITIES AND CERTAIN REPURCHASE RIGHTS
IN FAVOR OF THE COMPANY UPON TERMINATION OF SERVICE WITH THE COMPANY.
THE SECRETARY OF THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY
OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE."
7. Escrow.
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7.1 Deposit. Upon issuance, the certificates for the Shares shall be
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deposited in escrow with the Secretary of the Company to be held in accordance
with the provisions of this Article 7. Each deposited certificate shall be
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accompanied by a duly executed Assignment Separate from Certificate in the form
of Exhibit A, attached hereto. The deposited certificates, together with any
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other assets or securities from time to time deposited with the Company pursuant
to the requirements of this Agreement, shall remain in escrow until such time or
times as the certificates (or other assets and securities) are to be released or
otherwise surrendered for cancellation in accordance with Section 7.3 below.
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Upon delivery of the certificates (or other assets and securities) to the
Company, the Owner shall be issued an instrument of deposit acknowledging the
number of Shares (or other assets and securities) delivered in escrow to the
Secretary of the Company.
7.2 Recapitalization. All regular cash dividends on the Shares (or
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other securities at the time held in escrow) shall be paid directly to the Owner
and shall not be held in escrow. However, in the event of any stock dividend,
stock split, recapitalization or other change affecting the Company's
outstanding Common Stock as a class effected without receipt of consideration or
in the event of a Corporate Transaction, any new, substituted or additional
securities or other property which is by reason of such transaction distributed
with respect to the Shares shall be immediately delivered to the Secretary of
the Company to be held in escrow under this Article 7, but only to the extent
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the Shares are at the time subject to the escrow requirements of Section 7.1
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above.
7.3 Release/Surrender. The Shares, together with any other assets or
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securities held in escrow hereunder, shall be subject to the following terms and
conditions relating to their release from escrow or their surrender to the
Company for repurchase and cancellation:
(a) Should the Company exercise the Repurchase Right under
Article 5 above with respect to any Unvested Shares, then the escrowed
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certificates for such Unvested Shares (together with any other assets or
securities issued with respect thereto) shall be delivered to the Company for
cancellation, concurrently with the payment to the Owner, in cash or cash
equivalent (including the cancellation of any purchase-money indebtedness), of
an amount equal to the aggregate Purchase Price for such Unvested Shares, and
the Owner shall have no further rights with respect to such Unvested Shares (or
other assets or securities).
(b) Should the Company exercise its First Refusal Right under
Article 6 above with respect to any Target Shares held at the time in escrow
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hereunder, then the escrowed certificates for such Target Shares (together with
any other assets or securities issued
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with respect thereto) shall, concurrently with the payment of the purchase price
(described in Section 6.3 above) for such Target Shares to the Owner, be
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surrendered to the Company for cancellation, and the Owner shall have no further
rights with respect to such Target Shares (or other assets or securities).
(c) Should the Company elect not to exercise its First Refusal
Right under Article 6 above with respect to any Target Shares held at the time
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in escrow hereunder, then the escrowed certificates for such Target Shares
(together with any other assets or securities issued with respect thereto) shall
be surrendered to the Owner for disposition according to the provisions of
Section 6.4 above.
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(d) As the interest of the Purchaser in the Shares (or any other
assets or securities issued with respect thereto) vests in accordance with the
provisions of Article 5 above, the certificates for such vested shares (as well
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as all other vested assets and securities) shall be released from escrow and
delivered to the Owner, if requested by the Owner, in accordance with the
following schedule:
(1) Releases of vested shares (or other vested assets and
securities) from escrow shall be effected at annual intervals, with the first
such annual release to occur twelve (12) months after the Vesting Measurement
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Date;
(2) Upon the Purchaser's cessation of Service Provider
status, any escrowed Shares (or other assets or securities) in which the
Purchaser is at the time vested shall be promptly released from escrow; and
(3) Upon any earlier termination of the Company's Repurchase
Right in accordance with the applicable provisions of Article 5 above, the
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Shares (or other assets or securities) at the time held in escrow hereunder
shall promptly be released to the Owner as fully vested shares or other
property.
(e) All Shares (or other assets or securities) released from
escrow in accordance with the provisions of subsection (d) above shall
nevertheless remain subject to the First Refusal Right under Article 6 above and
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the market stand-off provisions of Section 3.3 above until such provisions
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terminate in accordance herewith.
8. General Provisions.
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8.1 Assignment. The Company may assign its Repurchase Rights under
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Article 5 above and/or its First Refusal Right under Article 6 above to any
- --------- ---------
person or entity selected by the Company's Board of Directors, including one or
more stockholders of the Company; provided, however, that if the assignee of the
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Repurchase Right is other than a parent or subsidiary corporation of the
Company, then such assignee must make a cash payment to the Company, upon the
assignment of the Repurchase Right, in an amount equal to the excess (if any) of
the fair market value of the Unvested Shares at the time subject to the
Repurchase Right (as determined by the Company's Board of Directors) and the
aggregate Repurchase Price payable for such Unvested Shares.
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8.2 Definitions. For purposes of this Agreement, the following provisions
-----------
shall be applicable in determining the parent and subsidiary corporations of the
Company:
(a) Any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company shall be considered to be a parent
corporation of the Company, provided each such corporation in the unbroken chain
(other than the Company) owns, at the time of the determination, stock
possessing fifty percent (50%) or more of the total combined voting power of all
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classes of stock in one of the other corporations in such chain.
(b) Each corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company shall be considered to be a subsidiary
of the Company, provided each such corporation (other than the last corporation)
in the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
- ------------- --
stock in one of the other corporations in such chain.
8.3 No Employment or Service Contract. Nothing in this Agreement shall
confer upon the Purchaser any right to continue in the service of the Company
(or any parent or subsidiary corporation of the Company) for any period of time
or restrict in any way the rights of the Company (or any parent or subsidiary
corporation of the Company) or the Purchaser, to terminate the Service Provider
status of the Purchaser at any time for any reason whatsoever, with or without
cause.
8.4 Notices. Any notice required in connection with (i) the Repurchase
-------
Right or the First Refusal Right or (ii) the disposition of any Shares covered
thereby shall be given in writing and shall be deemed effective upon personal
delivery, upon deposit with a nationally recognized courier service, or upon
deposit in the United States mail, registered or certified, postage prepaid and
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this Section
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8.4 to all other parties to this Agreement.
- ---
8.5 No Waiver. The failure of the Company (or its assignees) in any
---------
instance to exercise the Repurchase Right granted under Article 5 above, or the
---------
failure of the Company (or its assignees) in any instance to exercise the First
Refusal Right granted under Article 6 above, shall not constitute a waiver of
---------
any other repurchase rights and/or rights of first refusal that may subsequently
arise under the provisions of this Agreement or any other agreement between the
Company and the Purchaser. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
8.6 Cancellation of Shares. If the Company (or its assignees) shall make
----------------------
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Shares to be repurchased in accordance with
the provisions of this Agreement, then from and after such time, the person from
whom such shares are to be repurchased shall no longer have any rights as a
holder of such shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company (or
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its assignees) shall be deemed the owner and holder of such shares, whether or
not the certificates therefor have been delivered as required by this Agreement.
9. Miscellaneous Provisions.
------------------------
9.1 Purchaser Undertaking. The Purchaser hereby agrees to take whatever
---------------------
additional action and execute whatever additional documents the Company may in
its judgment deem necessary or advisable in order to carry out the obligations
or restrictions imposed on the Purchaser under this Agreement.
9.2 Agreement Is Entire Contract. This Agreement constitutes the entire
----------------------------
contract between the parties hereto with regard to the subject matter hereof.
9.3 Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of California, as such laws are applied
to contracts entered into and performed in such State.
9.4 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9.5 Successors and Assigns. The provisions of this Agreement shall inure
----------------------
to the benefit of, and be binding upon, the Company and its successors and
assigns and the Purchaser and the Purchaser's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person shall have become a party to this Agreement and have agreed
in writing to join herein and be bound by the terms and conditions hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
MJBC CORP.
By: _____________________________
Name: _____________________________
Title: _____________________________
PURCHASER:
____________________________________
*
_______________________
* I have received and retained the I.R.C. Section 83(b) election that was
attached hereto as Exhibit B. As set forth in Section 3.2, I understand that I,
--------- -----------
and not the Corporation, will be responsible for completing the form and filing
---
the election with the Internal Revenue Service and that if such filing is not
completed within thirty (30) days after the date of this Agreement, I will
------ --
forfeit the significant tax benefits of Section 83(b). I understand further that
such filing should be made by registered or certified mail, return receipt
requested, and that I must retain two (2) copies of the completed form for
--- -
filing with my state and federal tax returns for the current tax year and an
additional copy for my records.
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Spousal Consent
---------------
________________ (the Purchaser's spouse) indicates by the execution of
this Agreement his consent to be bound by the terms herein as to his interests,
whether as community property or otherwise, if any, in the Shares.
--------------------------------
(Signature)
--------------------------------
(Printed Name)
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EXHIBIT A
---------
Assignment Separate From Certificate
------------------------------------
FOR VALUE RECEIVED __________________ ("Stockholder") hereby sells,
assigns and transfers unto MJBC CORP., a Delaware corporation (the "Company"),
____________ (___) shares of Common Stock of the Company represented by
Certificate No. _____ herewith and does hereby irrevocably constitute and
appoint ________________ Attorney to transfer the said stock on the books of the
Company with full power of substitution in the premises.
Dated: ____________, 20__.
-----------------------------------
(Signature)
Spousal Consent
---------------
________________ (the Purchaser's spouse) indicates by the execution of
this Assignment his consent to be bound by the terms herein as to his interests,
whether as community property or otherwise, if any, in the Shares.
-----------------------------------
(Signature)
-----------------------------------
(Printed Name)
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" SET FORTH IN THE AGREEMENT WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF PURCHASER.
A-1
EXHIBIT B
---------
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
(A) The name, address and social security number of the undersigned:
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Social Security No.: ______________________________________________
(B) Description of property with respect to which the election is being made:
_______ shares of Common Stock of MJBC CORP. (the "Company").
(C) The date on which the property was transferred is __________, 2001.
(D) The taxable year to which this election relates is calendar year 2001.
(E) Nature of restrictions to which the property is subject: The shares of
stock transferred to the undersigned taxpayer are subject to the provisions of a
Restricted Stock Purchase Agreement between the undersigned and the Company.
Under the provisions of the Agreement, the Company will have the right to
repurchase the stock at a price which may be less than the fair market value of
the shares in the event of the undersigned's termination of employment with the
Company.
(F) The fair market value of the property at the time of transfer (determined
without regard to any lapse restriction) was $0.005 per share, for a total of
$ ________.
(G) The amount paid by taxpayer for the property was $_____.
(H) A copy of this statement has been furnished to the Company.
Dated: __________, 2001
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(Signature)
B-1