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EXHIBIT 4.05
DVDO, INC.
Form of Incentive Stock Option Acceptance Letter
TO: GRANT DATE:
We are pleased to notify you that DVDO, Inc., a California corporation (the
"Company") hereby grants to you (sometimes referred to herein as "Optionee") an
Option to purchase all or any part of ( ) shares (the
"Option Shares") (although no fractional shares may be purchased) of the
Company's Common Stock under the 1997 Stock Option Plan (the "Plan"), at the
exercise price of ($ ) per share ("Exercise Price"). Such
Option shall be an Incentive Stock Option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"). Capitalized terms not
otherwise defined herein shall have the meanings assigned to them in the Plan.
This option cannot be exercised, unless you first sign this document in the
place provided and return it to the Secretary of the Company. However, your
signing and delivering this letter will not bind you to purchase any of the
shares subject to the option. Your obligation to purchase shares can arise only
when you exercise this option in the manner set forth in Section 1 below.
THIS OPTION IS SUBJECT TO AND MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE
PLAN. ONLY CERTAIN PROVISIONS OF THE PLAN ARE SUMMARIZED IN THIS LETTER. A COPY
OF THE PLAN IS ATTACHED TO THIS INCENTIVE STOCK OPTION ACCEPTANCE LETTER AND
SHOULD BE READ CAREFULLY.
1. TERM OF OPTION, VESTING AND EXERCISE OF OPTION. Subject to the
provisions of the Plan and the terms and conditions of this Acceptance Letter,
this option may be exercised by you during a period of up to ten (10) years from
the Grant Date as follows:
(a) Grant Date:
(b) Initial Vesting Date:
(c) Number of Shares Optioned:
(d) Option Exercise Price:
(e) Expiration Date:
This Option to purchase shares of common stock of the Company is not
exercisable in any part until the Initial Vesting Date. On the Initial Vesting
Date, one-fourth ( 1/4) of the Optioned Shares shall be purchasable. The
remaining Optioned Shares shall vest in equal monthly increments thereafter
until the expiration of thirty (30) months from the Initial Vesting Date.
Subject to the terms hereof in Sections 2 and 3 below, any portion of the
options that you do not exercise shall accumulate and can be exercised by you
any time prior to the expiration of ten (10) years from the Grant Date.
REPURCHASE RIGHTS. THE OPTIONEE HEREBY AGREES THAT ALL OPTION SHARES
ACQUIRED UPON THE EXERCISE OF THE OPTION SHALL BE SUBJECT TO CERTAIN REPURCHASE
RIGHTS AND RIGHTS OF FIRST REFUSAL IN FAVOR OF THE COMPANY AND ITS ASSIGNS UPON
ANY PROPOSED SALE, ASSIGNMENT, TRANSFER, ENCUMBRANCE OR OTHER DISPOSITION OF THE
COMPANY'S OPTION SHARES OR UPON OPTIONEE'S SEPARATION. THE TERMS AND CONDITIONS
OF SUCH RIGHTS ARE SPECIFIED 1N THE ATTACHED STOCK RESTRICTION AGREEMENT.
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2. TERMINATION OF EMPLOYMENT. If your employment with the Company is
terminated for any reason other than death or disability, this option must be
exercised within three (3) months of such event to the extent that it was vested
on the date of termination, but in no event may this option be exercised after
ten (10) years from the Grant Date. Failure to exercise the option within such
three (3) months shall cause all unexercised portions of the option to lapse. If
you are granted a leave of absence, you shall be deemed to be still in the
employ of the Company, except that you may not exercise an option during such
leave of absence.
3. DEATH OR DISABILITY. If you die or are disabled while employed by the
Company, this option must be exercised in whole or in part by the duly
authorized executor of your last Will or by the duly authorized administrator or
special administrator of your estate as the case may be within six (6) months,
to the extent that the option was vested on the date of your death or
disability, but in no event after ten (10) years from the Grant Date. Your
estate shall mean yourself or your legal representative or any person who
acquires the right to exercise an option, as the case may be, by reason of your
death or disability. If you are subject to the provisions of this Section 3 and
fail to exercise the option within the six (6) month period, then the
unexercised portion of the option shall lapse.
4. NONTRANSFERABILITY OF OPTION. This option shall not be transferable
except by Will or the laws of descent and distribution, and this option may be
exercised during your lifetime only by you. Any purported transfer or assignment
of this option shall be void and of no effect, and shall give the Company the
right to terminate this option as of the date of such purported transfer or
assignment.
5. METHOD OF EXERCISE. This option may be exercised with respect to all or
any part of any Option Shares as follows:
(a) By giving the Company written notice of such exercise, specifying
the number of shares as to which this option is so exercised and accompanied
by cash, check, bank draft, or money order payable to the order of the
Company for an amount in lawful money of the United States equal to the
Exercise Price multiplied by the number of said shares, or where permitted
by law:
(i) by cancellation of indebtedness of the Company to the Optionee;
(ii) by surrender of shares of the Company's Common Stock that either
(i) are owned by Optionee and have been paid for within the meaning of SEC
Rule 144 (and, if such Shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to such shares),
or (ii) were obtained by Optionee in the open public market and are clear of
all liens, claims, encumbrances or security interests.
(iii) by waiver of compensation due or accrued to Optionee for services
rendered;
(iv) provided that a public market for the Company's stock exists,
(i) through a "same day sale" commitment from Optionee and a broker-dealer
that is a member of the National Association of Securities Dealers ("NASD
Dealer") whereby Optionee irrevocably elects to exercise the Option and to
sell a portion of the Option Shares so purchased to pay for the Exercise
Price and whereby the NASD Dealer irrevocably commits upon receipt of such
Option Shares to forward the Exercise Price directly to the Company or
(ii) through a "margin" commitment from Optionee and a NASD Dealer whereby
Optionee irrevocably elects to exercise the Option and to pledge the Option
Shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the Exercise Price, and whereby
the NASD Dealer irrevocably commits upon receipt of such Option Shares to
forward the Exercise Price directly to the Company; or
(v) by any combination of the foregoing; and
(b) By executing your Stock Restriction Agreement (Exhibit "A" to the Plan).
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As soon as practical after receipt of such notice, the Company shall,
without transfer or issue tax or other incidental expense to you or your
successor, transfer and deliver thereto at the office of the Company or such
other place as may be mutually agreeable a certificate or certificates for such
shares of its common stock; provided, however, that the time of such delivery
may be postponed by the Company for such period as may be required for it with
reasonable diligence to comply with applicable registration requirements under
the Securities Act of 1933, as amended, any applicable listing requirements of
any national securities exchange, and requirements under any other laws or
regulations applicable to the issuance or transfer of such shares. If you fail
to accept delivery of any payment for all or any part of the number of shares
specified in such Notice upon tender of delivery of these shares, your right to
purchase said shares may be terminated by the Company at its election and within
its sole discretion.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any change
in the outstanding Common Stock of the Company by reason of stock dividends,
recapitalization, mergers, consolidations, split-up, combinations or exchanges
of shares and the like, the aggregate number or class of shares subject to this
option immediately prior to such event shall be appropriately adjusted by the
Board of Directors in accordance with the terms of the Plan, and such adjustment
shall be conclusive.
7. TAX STATUS. Incentive stock options granted pursuant to the Plan are
intended to result in favorable tax treatment under Section 422 of the Code.
Your treatment of shares purchased pursuant to the exercise of the option
thereafter may have significant tax consequences. You may wish to consult your
tax advisor with respect to the tax consequences to you upon exercise of the
option or sale of the stock that you acquire pursuant to this option.
8. TAX WITHHOLDING. Prior to the issuance of the Option Shares upon
exercise of the Option, Optionee must pay or provide for the applicable federal,
state, and local tax withholding obligations of the Company. If the Company
permits, Optionee may provide for payment of withholding taxes upon exercise of
the Option by requesting that the Company retain Option Shares with a fair
market value equal to the minimum amount of taxes required to be withheld. In
such case, the Company shall issue the net number of Option Shares to Optionee
by deducting the Option Shares retained from the Option Shares issuable upon
exercise.
9. CONDITIONAL SECTION 83(b) ELECTION FOR UNVESTED OPTION SHARES. With
respect to the exercise of Unvested Shares (as defined in the Stock Restriction
Agreement) pursuant to an ISO which are subject to the Repurchase Option as
described in the Stock Restriction Agreement, Optionee may elect to file a
conditional 83(b) Tax Election with the Internal Revenue Service (and, if
necessary, the proper state taxing authorities), within thirty (30) days of the
purchase of the Unvested Shares. Such election may, in the event of a
disqualifying disposition of Option Shares obtained pursuant to an ISO exercise
or for determining alternative minimum tax for such a transaction, permit the
Optionee to be taxed currently on any difference between the Exercise Price of
the Unvested Shares and their fair market value on the date of purchase. In
situations in which the 83(b) Tax Election is not recognized by the Internal
Revenue Service, there may be a recognition of taxable income (including, where
applicable, alternative minimum taxable income) to the Optionee, measured by the
excess, if any, of the fair market value of the Unvested Shares at the time they
cease to be Unvested Shares, over the Exercise Price of the Unvested Shares.
10. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the Option is an
ISO, and if Optionee sells or otherwise disposes of any of the Option Shares
acquired pursuant to the ISO on or before the later of (i) the date two
(2) years after the Date of Grant; and (ii) the date one (1) year after transfer
of such Option Shares to Optionee upon exercise of the Option, Optionee shall
immediately notify the Company in writing of such disposition. Optionee agrees
that Optionee may be subject to income tax withholding by the Company on the
compensation income recognized by Optionee from the early disposition by payment
in cash or out of the current wages or other compensation payable to Optionee.
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11. COMPLIANCE WITH SECURITIES LAWS AND REGULATIONS. The Plan and this
Incentive Stock Option Acceptance Letter are intended to comply with
Section 25102(o) of the California Corporations Code. Any provision of this
Agreement which is inconsistent with Section 25102(o) shall, without further act
or amendment by the Company or the Board, be reformed to comply with the
requirements of Section 25102(o). The exercise of the Option and the issuance
and transfer of Option Shares shall be subject to compliance by the Company and
the Optionee with respect to all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange on
which the Company's Common Stock may be listed at the time of such issuance or
transfer. Optionee understands that the Company is under no obligation to
register or qualify the Option Shares with the Securities and Exchange
Commission, any state securities commission or any stock exchange to effect such
compliance.
12. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not have any of the
rights of a shareholder with respect to any Option Shares until Optionee
exercises the Option and pays the Exercise Price and the Option Shares are
issued to Optionee.
13. ENTIRE AGREEMENT. The Plan is incorporated herein by reference. This
Agreement and the Plan (including when executed, the Stock Restriction
Agreement) constitute the entire agreement between the parties and supersedes,
merges and voids all prior undertakings and agreements with respect to the
subject matter hereof.
14. NOTICES. All notices required or desired to be given pursuant to this
Agreement shall be in writing and shall be personally served (including by
commercial delivery or courier service) or given by mail. Any notice given by
mail shall be deemed to have been given and received when ninety-six (96) hours
have elapsed from the time such notice was deposited in the United States mail,
certified or registered and first-class postage prepaid, addressed, if intended
to a party to this Agreement, at the address set forth below its signature or to
such other address as such party may have designated by like written notice to
each of the other parties from time to time.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon
Optionee and Optionee's heirs, executors, administrators, legal representatives,
successors and assigns.
16. 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
agreements between California residents entered into and to be performed
entirely within California. 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.
17. FINANCIAL REPORTS. The Company shall provide financial and other
information regarding the Company, on an annual or more frequent basis, to each
individual holding an outstanding option under the Plan, as required pursuant to
Section 260.140.46 of Title 10, California Code of Regulations.
COMPANY: DVDO, INC.
By:
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Title:
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OPTIONEE:
Address:
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Social Security No.:
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EXHIBIT A
NOTICE OF EXERCISE
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NOTICE OF EXERCISE
, 200
DVDO, Inc.
1129 Dell Avenue
Campbell, CA 95008
Ladies and Gentlemen:
Please be advised that with respect to my stock option grant dated
, 19 , I hereby exercise my option to purchase an aggregate of
( ) shares of DVDO, Inc. Common Stock ("Shares"), at an
exercise price of ($ ) per share, for a total of
Dollars ($ ).
In connection with the option exercise, attached please find my executed
Stock Restriction Agreement and personal check in the amount of Dollars
($ ).
<TABLE>
<S> <C>
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(Signature)
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(Print Name)
Address:
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(Social Security Number)
</TABLE>
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EXHIBIT B
STOCK RESTRICTION AGREEMENT
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DVDO, INC.
STOCK RESTRICTION AGREEMENT
THIS STOCK RESTRICTION AGREEMENT (this "Agreement") is made this of
, by and between DVDO, Inc., a California corporation (the
"Company"), and ("Purchaser"), with respect to an aggregate of
( ) shares ("Shares") of the Company's common stock, at a
purchase price of ($ ) per share ("Exercise Price"), issued to
the Purchaser under the Company's 1997 Stock Option Plan (the "Plan").
Capitalized terms not otherwise defined shall have the meanings assigned to them
in the Plan.
NOW, THEREFORE, in consideration of the obligations herein assumed by the
respective parties, it is mutually agreed as follows:
1. EXERCISE OF OPTION.
(a) Pursuant to the exercise of that certain option ("Option")
granted to Purchaser under the Plan and subject to the terms and
conditions of this Agreement, Purchaser hereby purchases from the
Company, and the Company hereby sells to Purchaser, the Shares upon the
terms and conditions set forth above. 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 with respect to the Shares, and
(c) all securities received in replacement of the Shares in a merger,
recapitalization, reorganization or similar corporate transaction.
(b) Purchaser hereby delivers payment of the Exercise Price in the
manner permitted in the form of Stock Option Acceptance Letter as follows
(check and complete as appropriate):
[ ] in cash in the amount of $ , receipt of which is
acknowledged by the Company;
[ ] by cancellation of indebtedness of the Company to Purchaser
in the amount of $ ;
[ ] by delivery of fully-paid, nonassessable Shares
of the Common Stock of the Company owned by Purchaser which have been
paid for within the meaning of Rule 144 promulgated under the
Securities Act of 1933, as amended ("Rule 144") (if purchased by use
of a promissory note, such note has been fully paid with respect to
such Shares), or obtained by Purchaser in the open public market, and
owned free and clear of all liens, claims, encumbrances or security
interests, valued at the current fair market value of $
per share; or
[ ] by the waiver hereby of compensation due or accrued for
services rendered in the amount of $ .
2. DELIVERIES BY PURCHASER. Purchaser hereby delivers to the Company
(i) the form of Notice of Exercise, (ii) this Stock Restriction Agreement,
(iii) if Purchaser is married, a consent of Spouse in the form of EXHIBIT A
attached hereto (the "Spouse Consent") executed by Purchaser's spouse),
(iv) two (2) copies of a blank Assignment Separate From Certificate
substantially in the form attached hereto as EXHIBIT B, both executed by
Purchaser and (v) the Exercise Price.
3. DELIVERIES BY THE COMPANY. Upon its receipt of the Exercise Price
and all the documents to be executed and delivered by Purchaser to the
Company under Section 2 above, the Company will issue a duly executed stock
certificate evidencing the Shares in the name of the Purchaser, to be placed
in escrow as provided in Section 4 below until expiration or termination of
the Right of First Refusal and Company's Repurchase Option described herein.
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4. SHARES TO BE HELD IN ESCROW. Upon issuance, the certificates for
any shares purchased hereunder shall be deposited in escrow with the
Corporate Secretary of the Company or other designee of Company ("Escrow
Holder") to be held in escrow in accordance with the provisions of this
Section 4. Each deposited certificate shall be accompanied by two
(2) duly-executed Assignments Separate From Certificate substantially in the
form attached hereto as EXHIBIT B. The deposited certificates, together with
any other assets or securities from time to time deposited with the Escrow
Holder 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
connection with the escrow of the Shares described herein, Purchaser may be
required to execute and deliver a written escrow agreement between the
Purchaser, the Company and the Escrow Holder in such form as the Board will
from time to time approve.
5. RESTRICTIONS AGAINST TRANSFER.
(a) RESTRICTIONS IMPOSED BY THIS AGREEMENT. Purchaser shall not
transfer, assign, hypothecate, or in any way dispose of any of his
Shares, or any right or interest therein, whether voluntarily or by
operation of law, or by gift or otherwise, without the prior written
consent of the Company, except to the extent that a transfer is made in
accordance with the terms of this Agreement. Any purported transfer in
violation herein of any provision of this Agreement shall be void and
ineffective, and shall not operate to transfer any interest or title
therein to the purported transferee.
(b) FEDERAL LAW RESTRICTIONS ON TRANSFER. Purchaser hereby
acknowledges that in addition to the restrictions imposed by subsection
5(a), above, the following restrictions also apply with respect to the
Shares:
(i) The Shares held by Purchaser must be held indefinitely unless
registered under the Securities Act, or unless, in the opinion of
counsel of the Company, an exemption from such registration is
available;
(ii) Only the Company may file a registration statement with the
Securities and Exchange Commission (the "SEC"), and the Company is
under no obligation to do so, with respect to the Shares;
(iii) Exemption from registration may not be available or may not
permit Purchaser to transfer the Shares in the amounts or at the
times proposed by Purchaser;
(iv) Purchaser has been advised that the exemption from the
registration requirements under Rule 144 is not presently available
with respect to the Shares and may never be available and, in any
event, requires that the Shares be held and fully paid for within the
meaning of Rule 144 for the applicable periods described herein,
before they may be resold under Rule 144;
(v) The Company is under no obligation to file any disclosure
statement with the SEC or to furnish Purchaser with information to
sell any of the Shares under Rule 144;
(vi) In reliance upon the representations of Purchaser set forth
in Section 6 below, the Company has not registered the Shares with
the SEC under the Securities Act of 1933, as amended (the "Securities
Act").
6. REPRESENTATIONS OF PURCHASER. Purchaser represents and warrants to
the Company that:
(a) Purchaser is purchasing the Shares for Purchaser's own account
for investment 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;
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(b) Purchaser has no present intention of selling or otherwise
disposing of all or any portion of the Shares, and no other person has
any beneficial ownership in the Shares;
(c) Purchaser has had access to all information regarding the Company
and its present and prospective business, assets, liabilities and
financial condition;
(d) Purchaser was not at any time presented with or solicited by any
publicly issued or circulated newspaper, mail, radio or television
advertisement, or any other form of general advertising;
(e) Purchaser has had ample opportunity to ask questions of and
receive answers from the Company's representatives concerning this
investment and to obtain any and all documents requested in order to
supplement or verify any of the information supplied;
(f) Purchaser recognizes that this investment in the Shares involves
special and substantial risks;
(g) Purchaser recognizes (i) the highly speculative nature of the
investment, (ii) the financial hazards involved, (iii) the lack of
liquidity of the Shares and restrictions upon transferability thereof
(e.g., that the undersigned may not be able to sell or dispose of them or
use them as collateral for loans), and (iv) the qualifications and
backgrounds of the principals of the Company, among other matters;
(h) Purchaser specifically represents and warrants that Purchaser is
financially capable of bearing a total loss of this investment;
(i) If Purchaser is married, Purchaser's spouse shall execute the
consent of spouse form attached hereto and Purchaser understands that if
such form is not signed, then the Company shall be entitled to rely on
such fact that Purchaser is unmarried at the time of purchase; and
(j) Purchaser, has received a copy of the Plan and the Stock Option
Acceptance Letter, has read and understands the terms of the Plan, the
Stock Option Acceptance Letter and this Stock Restriction Agreement, and
agrees to be bound by their terms and conditions. Purchaser acknowledges
that there may be adverse tax consequences upon exercise of Options or
disposition of Shares, and that Purchaser should consult a tax adviser
prior to such exercise or disposition.
7. OBLIGATIONS OF SUBSEQUENT TRANSFEREES. Upon any purported transfer
of the Shares pursuant to the terms of this Agreement, the transferee or any
subsequent transferee shall be required to sell or transfer his or her
Shares as provided in this Agreement in the same manner and to the same
extent as the transferring stockholder would have been required to sell or
transfer the Shares. All references in this Agreement to Shares shall be
deemed to include Shares owned by any transferee, except that payment for
the Shares shall be made to the record owner.
8. RESTRICTION ON TRANSFER.
(a) RIGHT OF FIRST REFUSAL. Prior to any proposed transfer by
Purchaser of his Shares (referred to in this Section 8 as the "Offered
Shares"), or any rights or interests therein, Purchaser shall give
written notice to the Secretary of the Company of his intention to
transfer the Offered Shares. The notice must be accompanied by a copy of
a bona fide executed agreement between the Purchaser and the proposed
transferee relating to the purchase of the Offered Shares and must
specify the name of the proposed transferee, the number of Offered Shares
to be transferred, the price per Offered Share, and the terms of payment.
Receipt of the notice of proposed transfer by the Company shall
constitute the grant of an option to the Company exercisable for thirty
(30) days after receipt to purchase the Offered
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Shares in the same manner and on the same terms and conditions as agreed
to by the proposed transferee under the executed agreement. The Company
shall have the right, exercisable in its sole discretion, to assign such
option in whole or in part, to one or more assignees. In the event that
the offer does not provide for payment in cash, then, at the sole
discretion of the Company, the Option may be exercised by payment of the
cash equivalent of the fair market value of the purchase price or upon
such other terms as the Company (or its assignee(s), if any) and
Purchaser may agree. In the event that the Purchaser and the Company
cannot agree on the fair market value of the purchase price, the Board of
Directors of the Company shall make a determination of fair market value
and notify Purchaser of such determination (the "Determined Purchase
Price"). The Purchaser shall then have ten (10) days to accept or reject
the Determined Purchase Price. The Company's notification to Purchaser
shall specify the Determined Purchase Price and the method or calculation
for determining the price. If Purchaser does not notify the Company (or
assignee) of his or her rejection within such ten (10) day period, he
will have been deemed to have accepted the Determined Purchase Price. In
the event, however, Purchaser does reject the Determined Purchase Price,
the matter shall be submitted to arbitration by a single arbitrator
experienced in such disputes. The arbitration shall be conducted by the
American Arbitration Association ("AAA"), San Francisco office, under the
commercial rules which shall then be in effect. The AAA shall be
requested to determine only two facts: (i) the fair market value of the
property or service; and (ii) the reasonable cost of attorneys' fees for
determination of such fair market value. In connection with such
arbitration, the Determined Purchase Price shall be inadmissible and the
arbitrator shall be instructed in the event such information comes to his
or her attention, not to consider such Determined Purchase Price. The
Company and the Purchaser shall each pay fifty percent (50%) of the costs
of arbitration. The arbitrator shall be skilled and experienced in making
determinations of the type called for in such arbitration proceeding. The
maximum number of hearing days in any arbitration shall be three (3) and
the arbitrator shall not permit any "discovery" other than an exchange of
documents. The arbitrator shall issue a written decision listing reasons
for the decision and the findings within fifteen (15) calendar days after
the last hearing date.
(b) EXERCISE OF OPTION. Subject to the arbitration provisions above,
if the Company (or its assignee(s), if any) desires to acquire any part
or all of the Offered Shares, it shall deliver to Purchaser a written
election to purchase his Shares within thirty (30) days following the
Company's receipt of notice of the proposed transfer. The closing of the
purchase shall take place on the date specified in the election, but not
later than thirty (30) days after the date of delivery of such election.
(c) FAILURE TO EXERCISE OPTION. If the Company and/or its
assignee(s), if any, do not elect to purchase all of the Offered Shares
set forth in the notice of proposed transfer within the option period,
all of the Offered Shares may be transferred at any time within one
hundred twenty (120) days from the date of the notice of proposed
transfer, to the person and on the terms specified in the notice of
proposed transfer. The transferee will receive and hold the Shares
subject to all the provisions and restrictions in this Agreement. If the
Offered Shares have not been transferred within such one hundred twenty
(120)-day period, or if there has been any change in the terms of sale
from the terms set forth in the original agreement between Purchaser and
the proposed transferee, the Offered Shares shall not be transferred
without the Company having the right to purchase same pursuant to the
terms and conditions of the Company's first refusal rights, in the manner
and on the terms provided in this Agreement.
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9. REPURCHASE OPTION.
(a) Purchaser hereby grants to the Company the Option (the
"Repurchase Option") to repurchase all or part of the Shares (as defined
below) at the original purchase of such shares (the "Option Price"),
subject to adjustment pursuant to Section 12, upon the occurrences set
forth in subsection (b), but only to the extent such Shares have not been
released from the Repurchase Option as provided in subsection (b). All of
the Shares shall initially be subject to the Repurchase Option.
(b) One fourth ( 1/4) of the Shares shall vest on
Commencing with and the end of each month thereafter,
( ) of the Shares shall be released from the
Repurchase Option until all of the Shares are so released. Shares subject
to the Repurchase Option are referred to herein as "Unvested Shares," and
Shares which have been released from the Repurchase Option are referred
to herein as "Vested Shares."
(c) The Company may exercise the Repurchase Option if during the term
of this Agreement any one of the following events (an "Offering Event")
takes place: (i) Purchaser shall cease to be an employee, director or
consultant of the Company (including a parent or subsidiary of the
Company) for any reason, or no reason, with or without cause, including
involuntary termination, death or disability; or (ii) any event occurs
which causes the involuntary transfer to creditors or to any other person
or entity of all or any part of the Shares still subject to the
Repurchase Option at the time of such transfer.
(d) Upon the occurrence of an Offering Event, the Company may
exercise the Repurchase Option by delivering personally, or by registered
or certified mail, to Purchaser (or his permitted transferee or legal
representative, as the case may be), within ninety (90) days after the
date of the Offering Event, a notice in writing indicating the Company's
election to exercise its Repurchase Option and the number of Shares to be
purchased by the Company or the Company's designee, who shall be
identified in such notice, and setting forth a date for closing not later
than thirty (30) days from the date of giving such notice.
(e) The closing for the repurchase of the Shares pursuant to the
exercise of the Repurchase Option shall take place at the Company's
principal offices. At the closing, the holder of the certificate(s)
representing the Shares being transferred shall deliver said certificate
or certificates evidencing the Shares to the Company, duly endorsed for
transfer, and the Company (or its designee) shall tender payment of the
purchase price for the Shares being purchased. The purchase price shall
be payable in full in cash, or by check, provided that the Company may
elect to offset against and deduct from any payment of the purchase price
any indebtedness then owed by Purchaser to the Company.
10. RESTRICTIONS ON PURCHASE BY CORPORATION. The right of the Company
to exercise its option and to purchase any of the Shares is subject to the
restrictions governing the right of a corporation to purchase its own stock
contained in the California Corporations Code, and such other pertinent
governmental restrictions as are now, or may hereafter become effective.
11. TERMINATION. Except with respect to those restrictions set forth
in Sections 5 and 14, the restrictions on the transfer of Shares set forth
in this Agreement shall terminate upon the happening of any of the following
events:
(a) All of the Company's outstanding shares are held by only one
person, entity, corporation or association;
(b) The parties to this Agreement agree in writing or the Company's
Board of Directors so determines in writing that this Agreement shall
terminate;
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<PAGE>
(c) The Company dissolves; or,
(d) At the time of the first sale of common stock of the Company to
the general public pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission under the
Act.
12. ADJUSTMENTS. If, from time to time during the term of this
Agreement: (i) there is any stock dividend, other distribution or dividend
of cash or property, stock split, or other change in the character or amount
of any of the outstanding securities of the Company; or (ii) there is any
consolidation, merger or sale of all, or substantially all, of the assets of
the Company; then in such event, any and all new, substituted or additional
securities, cash, or other property to which Purchaser is entitled by reason
of his ownership of the Shares shall be immediately subject to the
Repurchase Option and the Right of First Refusal and be included in the word
"Shares" for all purposes with the same force and effect as the Shares
presently subject to the Repurchase Option, the Right of First Refusal and
other terms of this Agreement. While the total Option Price shall remain the
same after any such event, the Option Price per share shall be appropriately
adjusted.
13. REFUSAL TO TRANSFER. The Company shall not be required:
(a) To transfer on its books any Shares that have been sold, given
away, or otherwise transferred in violation of any provision set forth in
this Agreement; or
(b) To treat as owner of such Shares or to accord the right to
receive dividends to any purchaser, done, or other transferee to whom
such Shares shall have been so transferred.
14. RESTRICTION ON CERTIFICATES.
(a) LEGENDS. The Company and Purchaser agree that all certificates
representing all Shares of the Company which at any time are subject to
the provisions of this Agreement shall have endorsed upon them the
legends in substantially the following forms, as well as any additional
legends required by applicable state and federal securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, IN RELIANCE UPON AN
EXEMPTION THEREFROM. NO TRANSFER OF THESE SHARES OR ANY INTEREST THEREIN
MAY BE MADE, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT UNLESS THE ISSUER HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER
THE ACT. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS SET FORTH IN A STOCK RESTRICTION AGREEMENT BY AND
BETWEEN THE COMPANY AND THE PURCHASER (THE "AGREEMENT") AND ACCORDINGLY
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED, OR IN ANY MANNER
DISPOSED OF EXCEPT IN CONFORMITY WITH THE TERMS OF THE AGREEMENT. THE
AGREEMENT GRANTS CERTAIN REPURCHASE RIGHTS AND RIGHTS OF FIRST REFUSAL TO
THE COMPANY (OR ITS ASSIGNEES) UPON THE SALE, ASSIGNMENT, TRANSFER,
ENCUMBRANCE OR OTHER DISPOSITION OF THE COMPANY'S SHARES OR UPON
CESSATION OF SERVICE WITH THE COMPANY. THE COMPANY WILL UPON WRITTEN
REQUEST FURNISH A COPY OF THE AGREEMENT TO THE HOLDER HEREOF WITHOUT
CHARGE.
(b) STOP TRANSFER INSTRUCTIONS. Purchaser 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, with respect to such certificates or instruments and, if
6
<PAGE>
the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records. Under no circumstances
shall any sale or other transfer of any Shares be valid until the
proposed transferee shall have executed and become a party to this
Agreement, unless this requirement is waived by the prior express written
consent of the all the parties; and, notwithstanding any other provision
of this Agreement, no such sale or other transfer shall in any event
result in the nonapplicability of the provisions of this Agreement.
15. SEVERABILITY. In the event that any of the provisions of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions
shall not be affected thereby.
16. CONSTRUCTION. All pronouns used in this Agreement shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as
identification of the person or persons, firm or firms, corporation or
corporations may require.
17. GOVERNING LAW. This Agreement has been executed in and shall be
governed by the laws of the State of California.
18. AMENDMENT. No amendment or variation of the terms of this
Agreement, with or without consideration, shall be valid unless made in
writing and signed by all of the parties to this Agreement at the time of
such amendment.
19. INUREMENT. Subject to the restrictions against transfer or
assignment contained herein, the provisions of this Agreement shall inure to
the benefit of and shall be binding upon the assigns, successors in
interest, personal representatives, estates, heirs, and legatees of each of
the parties. Purchaser agrees that he will not hypothecate or otherwise
create or suffer to exist any lien, claim, or encumbrance upon any of his
Shares at any time subject hereto, other than an encumbrance created or
permitted by this Agreement.
20. NOTICES. All notices required or desired to be given pursuant to
this Agreement shall be in writing and shall be personally served (including
by commercial delivery or courier service) or given by mail. Any notice
given by mail shall be deemed to have been given and received when
ninety-six (96) hours have elapsed from the time such notice was deposited
in the United States mail, certified or registered and first-class postage
prepaid, addressed, if intended to a party to this Agreement, at the address
set forth below its signature or to such other address as such party may
have designated by like written notice to each of the other parties from
time to time.
21. MARKET STAND-OFF. Purchaser agrees in connection with any
registration of the Company's securities that, upon the request of the
Company or the underwriters managing any public offering of the Company's
securities, Purchaser will not sell or otherwise dispose of any Common Stock
without the prior written consent of the Company or such underwriters, as
the case may be, for such period of time (not to exceed one hundred eighty
(180) days) after the effective date of such registration requested by such
managing underwriters and subject to all restrictions as the Company or the
underwriters may specify.
22. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties concerning the subject matter contained herein. There
are no representations, agreements, arrangements, or understandings, oral or
written, between or among the parties, relating to the subject matter of
this Agreement, which are not fully expressed herein.
23. 83(b) TAX ELECTION. Purchaser understands that if the Shares are
acquired hereunder pursuant to the exercise of an NSO, Section 83 of the
Code taxes as ordinary income the difference between the Exercise Price paid
for the Shares and the fair market value of the Shares as of the date any
forfeiture restrictions lapse on the Shares. For this purpose, "forfeiture
restrictions" include the rights of the Company to repurchase the Shares
pursuant to the
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<PAGE>
Repurchase Option provided under Section 9 of this Agreement. Purchaser
understands that he may elect under Section 83(b) of the Code to be taxed at
the time the Shares cease to be subject to such forfeiture restrictions. If
the Shares are acquired hereunder pursuant to the exercise of an ISO, then
the Purchaser understands that the Purchaser may file a conditional 83(b)
tax election to be taxed at the time the Shares cease to be subject to such
forfeiture restrictions for purposes of disqualifying disposition events and
alternative minimum taxation. In each case, such 83(b) election must be
filed with the Internal Revenue Service within thirty (30) days after the
date of this Agreement and even if the fair market value of the Shares at
the date of this Agreement equals the Exercise Price paid (and thus no tax
is payable), the election must be made to avoid adverse tax consequences in
the future. THE FORM FOR MAKING THIS ELECTION IS ATTACHED AS EXHIBIT C
HERETO. PURCHASER UNDERSTANDS THAT FAILURE TO MAKE THIS FILING WITHIN THE
THIRTY (30) DAY PERIOD WILL RESULT IN THE RECOGNITION OF ORDINARY INCOME BY
THE PURCHASER AS THE FORFEITURE RESTRICTIONS LAPSE. PURCHASER FURTHER
ACKNOWLEDGES THAT SUCH ELECTION MAY RESULT IN ALTERNATIVE MINIMUM TAX
LIABILITY AND THAT PURCHASER SHOULD CONSULT WITH HIS OR HER TAX ADVISOR
REGARDING THIS MATTER. PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE
RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER
SECTION 83(b), EVEN IF PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES
TO MAKE THIS FILING ON HIS OR HER BEHALF. PURCHASER REPRESENTS THAT
PURCHASER HAS CONSULTED WITH ANY TAX ADVISER PURCHASER DEEMS ADVISABLE IN
CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT PURCHASER
IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. IN PARTICULAR, IF THE
SHARES ARE SUBJECT TO REPURCHASE BY THE COMPANY, PURCHASER REPRESENTS THAT
PURCHASER HAS CONSULTED WITH PURCHASER'S TAX ADVISER CONCERNING THE
ADVISABILITY OF FILING AN 83(b) ELECTION WITH THE INTERNAL REVENUE SERVICE.
24. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
<TABLE>
<S> <C>
By: --------------------------------------
Name:
Title:
Address: 1129 Dell Avenue
Campbell, CA 95008
PURCHASER:
-------------------------------------------
(signature)
Name:
Address:
</TABLE>
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<PAGE>
EXHIBIT A
SPOUSE'S CONSENT TO AGREEMENT
I acknowledge that I have read the foregoing Agreement, that I know its
contents, and that I have had an opportunity to consult independent counsel. I
am aware that by its provisions, my spouse agrees to sell all shares of the
Company, including my community interest in them, upon the happening of certain
events. I further agree that any action taken by my spouse with respect to the
Shares shall be deemed to be my action as well, as if I had consented to the
same and I hereby approve all such actions of my spouse. I hereby consent to the
sale, approve of the provisions of the Agreement, and agree that I will not
bequeath the shares or any of them or any interest in them by my Will if I
predecease my spouse. I direct that the residuary clause in my Will shall not be
deemed to apply to my community interest in the shares.
--------------------------------------
(signature)
Name:
---------------------------------
(print)
<PAGE>
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
<PAGE>
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, , hereby sells,
assigns and transfers unto , an aggregate of ( ) shares
of the Common Stock of DVDO, Inc., a California corporation, standing in the
undersigned's name on the books of said corporation represented by Certificate
No. herewith, and does hereby irrevocably constitute and appoint Wise &
Shepard LLP (or any other person selected by the Company in its discretion) as
attorney-in-fact to transfer the said stock on the books of the said corporation
with full power of substitution in the premises.
Dated:
---------------------------------
--------------------------------------
<PAGE>
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, , hereby sells,
assigns and transfers unto , an aggregate of ( ) shares
of the Common Stock of DVDO, Inc., a California corporation, standing in the
undersigned's name on the books of said corporation represented by Certificate
No. herewith, and does hereby irrevocably constitute and appoint Wise &
Shepard LLP (or any other person selected by the Company in its discretion) as
attorney-in-fact to transfer the said stock on the books of the said corporation
with full power of substitution in the premises.
Dated:
---------------------------------
--------------------------------------
<PAGE>
EXHIBIT C
<PAGE>
SECTION 83(b) TAX ELECTION
(FOR REGULAR INCOME TAX--NON-STATUTORY STOCK OPTIONS)
(FOR DISQUALIFYING DISPOSITION AND ALTERNATIVE
MINIMUM TAXATION PURPOSES-INCENTIVE STOCK OPTIONS)
This statement is being made under Section 83(b) of the Internal Revenue
Code, pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer is: Spouse (if any):
Name: Name: Address
Taxpayer ID No.: Taxpayer ID No.:
(2) The property with respect to which the election is being made is
shares of the Common Stock of DVDO, Inc.
(3) The property was issued on .
(4) The taxable year in which the election is being made is the calendar year
.
(5) The property is subject to a repurchase right pursuant to which the issuer
has the right to acquire the property at the original purchase price if for
any reason taxpayer's ceases to provide services to the Company. Issuer's
repurchase rights shall lapse with respect to the Unvested Shares 25% on
September 1, 1999 and the balance in a series of equal successive monthly
installments over thirty months until such time as all of the Unvested
Shares shall have become Vested Shares.
(6) The fair market value at the time of transfer (determined without regard to
any restriction other than a restriction which by its terms will never
lapse) is $0. per share.
(7) The amount paid for such property is $0 per share.
(8) A copy of this statement was furnished to DVDO, Inc., for whom taxpayer
renders the services underlying the transfer of property.
(9) This statement is executed as of .
<TABLE>
<S> <C>
-------------------------------------- --------------------------------------
Spouse (if any) Taxpayer
</TABLE>
This form must be filed with the Internal Revenue Service Center with which
taxpayer files his/her Federal income tax returns. The filing must be made
within thirty (30) days after the execution date of the Stock Restriction
Agreement.
