Restricted Stock Purchase Agreement - JD Technology and Jeff Hawkins
FOUNDER'S RESTRICTED STOCK PURCHASE AGREEMENT
This Agreement is made and entered into as of August 20, 1998 (the
"EFFECTIVE DATE") between JD Technology (the "COMPANY"), a California
corporation, and Jeff Hawkins ("PURCHASER").
1. PURCHASE OF SHARES. On the Effective Date and subject to the terms
and conditions of this Agreement, Purchaser hereby purchases from the Company,
and Company hereby sells to Purchaser, an aggregate of 4,550,000 shares of the
Company's common stock (the "SHARES") at an aggregate purchase price of
$45,500.00 (the "PURCHASE PRICE") or $0.01 per Share (the "PURCHASE PRICE PER
SHARE"). As used in this Agreement, the term "Shares" refers to the Shares
purchased under this Agreement and includes all securities received (a) in
replacement of the Shares, (b) as a result of stock dividends or stock splits in
respect of the Shares, and (c) in replacement of the Shares in a
recapitalization, merger, reorganization or the like.
2. PAYMENT OF PURCHASE PRICE; CLOSING.
(a) DELIVERIES BY PURCHASER. Purchaser hereby delivers to the
Company the full Purchase Price in cash in the amount of $45,500.00.
(b) DELIVERIES BY THE COMPANY. Upon its receipt of the entire
Purchase Price and all the documents to be executed and delivered by Purchaser
to the Company under Section 2(a), the Company will issue a duly executed stock
certificate evidencing the Shares in the name of Purchaser registered in
Purchaser's name in accordance with Section 19, with such certificate to be
placed in escrow as provided in Section 8 until expiration or termination of
both the Company's Repurchase Option and Right of First Refusal described in
Sections 5 and 6.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to the Company that:
(a) PURCHASE FOR OWN ACCOUNT FOR INVESTMENT. Purchaser is
purchasing the Shares for Purchaser's own account for investment purposes only
and not with a view to, or for sale in connection with, a distribution of the
Shares within the meaning of the Securities Act of 1933, as amended (the "1933
ACT"). Purchaser has no present intention of selling or otherwise disposing of
all or any portion of the Shares and no one other than Purchaser has any
beneficial ownership of any of the Shares.
(b) ACCESS TO INFORMATION. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares, and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
<PAGE> 2
(c) UNDERSTANDING OF RISKS. Purchaser is a founder of the
Company and is fully aware of: (i) the highly speculative nature of the
investment in the Shares; (ii) the financial hazards involved; (iii) the lack of
liquidity of the Shares and the restrictions on transferability of the Shares
(e.g., that Purchaser may not be able to sell or dispose of the Shares or use
them as collateral for loans); (iv) the qualifications and backgrounds of the
management of the Company; and (v) the tax consequences of investment in the
Shares.
(d) PURCHASER'S QUALIFICATIONS. Purchaser has a preexisting
personal or business relationship with the Company and/or certain of its
officers and/or directors of a nature and duration sufficient to make Purchaser
aware of the character, business acumen and general business and financial
circumstances of the Company and/or such officers and directors. By reason of
Purchaser's business or financial experience, Purchaser is capable of evaluating
the merits and risks of this investment, has the ability to protect Purchaser's
own interests in this transaction and is financially capable of bearing a total
loss of this investment.
(e) NO GENERAL SOLICITATION. At no time was Purchaser
presented with or solicited by any publicly issued or circulated newspaper,
mail, radio, television or other form of general advertising or solicitation in
connection with the offer, sale and purchase of the Shares.
(f) COMPLIANCE WITH SECURITIES LAWS. Purchaser understands and
acknowledges that, in reliance upon the representations and warranties made by
Purchaser herein, the Shares are not being registered with the Securities and
Exchange Commission ("SEC") under the 1933 Act or being qualified under the
California Corporate Securities Law of 1968, as amended (the "LAW"), but instead
are being issued under an exemption or exemptions from the registration and
qualification requirements of the 1933 Act and the Law or other applicable state
securities laws] which impose certain restrictions on Purchaser's ability to
transfer the Shares.
(g) RESTRICTIONS ON TRANSFER. Purchaser understands that
Purchaser may not transfer any Shares unless such Shares are registered under
the 1933 Act or qualified under the Law or unless, in the opinion of counsel to
the Company, exemptions from such registration and qualification requirements
are available. Purchaser understands that only the Company may file a
registration statement with the SEC or the California Commissioner of
Corporations and that the Company is under no obligation to do so with respect
to the Shares. Purchaser has also been advised that exemptions from registration
and qualification may not be available or may not permit Purchaser to transfer
all or any of the Shares in the amounts or at the times proposed by Purchaser.
(h) RULE 144. In addition, Purchaser has been advised that SEC
Rule 144 promulgated under the 1933 Act, which permits certain limited sales of
unregistered securities, is not presently available with respect to the Shares
and, in any event, requires that the Shares be held for a minimum of one year,
and in certain cases two years, after they have been purchased and paid for
(within the meaning of Rule 144), before they may be resold under Rule 144.
Purchaser understands that Rule 144 may indefinitely restrict transfer of the
Shares so long as
<PAGE> 3
Purchaser remains an "affiliate" of the Company and "current
public information" about the Company (as defined in Rule 144) is not publicly
available.
4. COMPLIANCE WITH CALIFORNIA SECURITIES LAWS. THE SALE OF THE
SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT, IF NOT YET QUALIFIED WITH THE
CALIFORNIA COMMISSIONER OF CORPORATIONS AND NOT EXEMPT FROM SUCH QUALIFICATION,
IS SUBJECT TO SUCH QUALIFICATION, AND THE ISSUANCE OF SUCH SECURITIES, AND THE
RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS
UNLAWFUL UNLESS THE SALE IS EXEMPT. THE RIGHTS OF THE PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED OR AN EXEMPTION
BEING AVAILABLE.
5. COMPANY'S REPURCHASE OPTION. The Company has the option to
repurchase all or a portion of the Unvested Shares (as defined below) on the
terms and conditions set forth in this Section (the "REPURCHASE OPTION") if
Purchaser ceases to be employed by the Company (as defined herein) for any
reason, or no reason, including without limitation Purchaser's death,
disability, voluntary resignation or termination by the Company with or without
cause.
(a) DEFINITION OF "EMPLOYED BY THE COMPANY"; "TERMINATION
DATE". For purposes of this Agreement, Purchaser will be considered to be
"employed by the Company" if the Board of Directors of the Company determines
that Purchaser is rendering substantial services as an officer, director,
employee, consultant or independent contractor to the Company or to any parent,
subsidiary or affiliate of the Company. In case of any dispute as to whether
Purchaser is employed by the Company, the Board of Directors of the Company will
have discretion to determine whether Purchaser has ceased to be employed by the
Company or any parent, subsidiary or affiliate of the Company and the effective
date on which Purchaser's employment terminated (the "TERMINATION DATE").
(b) UNVESTED AND VESTED SHARES. Shares that are not Vested
Shares (as defined in this Section) are "Unvested Shares". On the Effective
Date, twenty percent (20%) of the Shares will be Vested Shares. If Purchaser has
been continuously employed by the Company at all times from the Effective Date
until July 13, 1999 (the "FIRST VESTING DATE"), then on the First Vesting Date,
an additional twenty (20%) of the Shares will become Vested Shares; and
thereafter, for so long (and only for so long) as Purchaser remains continuously
employed by the Company at all times after the First Vesting Date, an additional
1.667% of the Shares will become Vested Shares upon the expiration of each full
calendar month elapsed after the First Vesting Date. No Shares will become
Vested Shares after the Termination Date.
(c) ADJUSTMENTS. The number of Shares that are Vested Shares
or Unvested Shares will be proportionally adjusted to reflect any stock
dividend, stock split, reverse stock split or recapitalization of the common
stock of the Company occurring after the Effective Date.
(d) EXERCISE OF REPURCHASE OPTION AT ORIGINAL PRICE. At any
time within thirty (30) days after the Termination Date, the Company may elect
to repurchase any or all of
<PAGE> 4
the Unvested Shares by giving Purchaser written notice of exercise of the
Repurchase Option. The Company and/or its assignee(s) will then have the option
to repurchase from Purchaser (or from Purchaser's personal representative as the
case may be) any or all of the Unvested Shares at the Purchaser's original
Purchase Price Per Share (as adjusted to reflect any stock dividend, stock
split, reverse stock split or recapitalization of the common stock of the
Company occurring after the Effective Date).
(e) PAYMENT OF REPURCHASE PRICE. The repurchase price payable
to purchase Unvested Shares upon exercise of the Repurchase Option will be
payable, at the option of the Company or its assignee(s), by check or by
cancellation of all or a portion of any outstanding indebtedness of Purchaser to
the Company (or to such assignee) or by any combination thereof. The repurchase
price will be paid without interest within sixty (60) days after the Termination
Date.
(f) RIGHT OF TERMINATION UNAFFECTED. Nothing in this Agreement
will be construed to limit or otherwise affect in any manner whatsoever the
right or power of the Company (or any parent, subsidiary or affiliate of the
Company) to terminate Purchaser's employment at any time for any reason or no
reason, with or without cause.
(g) ACCELERATION.
(i) In the event of an Acquisition Event (as defined
herein), then immediately prior to such event, twenty-five percent (25%) of the
Shares originally issued immediately become Vested Shares and the Company will
have no right to repurchase such Shares pursuant to this Section. Any Unvested
Shares shall continue to vest on the original vesting schedule.
(ii) The term "ACQUISITION EVENT" means (A) any
consolidation or merger of the Company with or into any other corporation or
corporations in which the holders of the Company's outstanding shares
immediately before such consolidation or merger do not, immediately after such
consolidation or merger, retain stock representing a majority of the voting
power of the surviving corporation of such consolidation or merger or stock
representing a majority of the voting power of a corporation that wholly owns,
directly or indirectly, the surviving corporation of such consolidation or
merger; (B) the sale, transfer or assignment of securities of the Company
representing a majority of the voting power of all the Company's outstanding
voting securities by the holders thereof to an acquiring party in a single
transaction or series of related transactions; (C) any other sale, transfer or
assignment of securities of the Company representing over two-thirds (2/3) of
the voting power of the Company's then outstanding voting securities by the
holders thereof to an acquiring party; or (D) the sale of all or substantially
all the Company's assets.
6. RIGHT OF FIRST REFUSAL. Unvested Shares may not be sold or otherwise
transferred by Purchaser without the Company's prior written consent. Before any
Vested Shares held by Purchaser or any transferee of such Shares (either being
sometimes referred to herein as the "HOLDER") may be sold or otherwise
transferred (including without limitation a transfer by gift or operation of
law), the Company and/or its assignee(s) will have a right of first refusal to
<PAGE> 5
purchase the Shares to be sold or transferred (the "OFFERED SHARES") on the
terms and conditions set forth in this Section (the "RIGHT OF FIRST REFUSAL").
(a) NOTICE OF PROPOSED TRANSFER. The Holder of the Shares will
deliver to the Company a written notice (the "NOTICE") stating: (i) the Holder's
bona fide intention to sell or otherwise transfer the Offered Shares; (ii) the
name of each proposed purchaser or other transferee ("PROPOSED TRANSFEREE");
(iii) the number of Offered Shares to be transferred to each Proposed
Transferee; (iv) the bona fide cash price or other consideration for which the
Holder proposes to transfer the Offered Shares (the "OFFERED PRICE"); and (v)
that the Holder will offer to sell the Offered Shares to the Company and/or its
assignee(s) at the Offered Price as provided in this Section.
(b) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within
thirty (30) days after the date of the Notice, the Company and/or its
assignee(s) may, by giving written notice to the Holder, elect to purchase all
(but not less than all) of the Offered Shares proposed to be transferred to any
one or more of the Proposed Transferees named in the Notice, at the purchase
price determined in accordance with subsection (c) below.
(c) PURCHASE PRICE. The purchase price for the Offered Shares
purchased under this Section will be the Offered Price. If the Offered Price
includes consideration other than cash, then the value of the non-cash
consideration as determined in good faith by the Company's Board of Directors
will conclusively be deemed to be the cash equivalent value of such non-cash
consideration.
(d) PAYMENT. Payment of the purchase price for Offered Shares
will be payable, at the option of the Company and/or its assignee(s) (as
applicable), by check or by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company (or to such assignee, in the case of a
purchase of Offered Shares by such assignee) or by any combination thereof. The
purchase price will be paid without interest within sixty (60) days after the
Company's receipt of the Notice, or, at the option of the Company and/or its
assignee(s), in the manner and at the time(s) set forth in the Notice.
(e) HOLDER'S RIGHT TO TRANSFER. If all of the Offered Shares
proposed in the Notice to be transferred to a given Proposed Transferee are not
purchased by the Company and/or its assignee(s) as provided in this Section,
then the Holder may sell or otherwise transfer such Offered Shares to that
Proposed Transferee at the Offered Price or at a higher price, provided that
such sale or other transfer is consummated within 120 days after the date of the
Notice, and provided further, that: (i) any such sale or other transfer is
effected in compliance with all applicable securities laws; and (ii) the
Proposed Transferee agrees in writing that the provisions of this Section will
continue to apply to the Offered Shares in the hands of such Proposed
Transferee. If the Offered Shares described in the Notice are not transferred to
the Proposed Transferee within such 120 day period, then a new Notice must be
given to the Company, and the Company will again be offered the Right of First
Refusal before any Shares held by the Holder may be sold or otherwise
transferred.
<PAGE> 6
(f) EXEMPT TRANSFERS. Notwithstanding anything to the contrary
in this Section, the following transfers of Shares will be exempt from the Right
of First Refusal: (i) the transfer of any or all of the Shares during
Purchaser's lifetime by gift or on Purchaser's death by will or intestacy to
Purchaser's "immediate family" (as defined below) or to a trust for the benefit
of Purchaser or Purchaser's immediate family, provided that each transferee or
other recipient agrees in a writing satisfactory to the Company that the
provisions of this Section will continue to apply to the transferred Shares in
the hands of such transferee or other recipient; (ii) any transfer of Shares
made pursuant to a statutory merger or statutory consolidation of the Company
with or into another corporation or corporations (except that the Right of First
Refusal will continue to apply thereafter to such Shares, in which case the
surviving corporation of such merger or consolidation shall succeed to the
rights or the Company under this Section unless the agreement of merger or
consolidation expressly otherwise provides); or (iii) any transfer of Shares
pursuant to the winding up and dissolution of the Company. As used herein, the
term "immediate family" will mean Purchaser's spouse, lineal descendant or
antecedent, father, mother, brother or sister, adopted child or grandchild, or
the spouse of any child, adopted child, grandchild or adopted grandchild of
Purchaser.
(g) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First
Refusal will terminate as to all Shares on the earlier of (i) and Acquisition
Event or (ii) the effective date of the first sale of common stock of the
Company to the general public pursuant to a registration statement filed with
and declared effective by the SEC under the 1933 Act (other than a registration
statement relating solely to the issuance of common stock pursuant to a business
combination or an employee incentive or benefit plan).
(h) ENCUMBRANCES ON VESTED SHARES. Purchaser may grant a lien
or security interest in, or pledge, hypothecate or encumber Vested Shares only
if each party to whom such lien or security interest is granted, or to whom such
pledge, hypothecation or other encumbrance is made, agrees in a writing
satisfactory to the Company that: (i) such lien, security interest, pledge,
hypothecation or encumbrance will not apply to such Vested Shares after they are
acquired by the Company and/or its assignees) under this Section; and (ii) the
provisions of this Section will continue to apply to such Vested Shares in the
hands of such party and any transferee of such party. Purchaser may not grant a
lien or security interest in, or pledge, hypothecate or encumber, any Unvested
Shares.
7. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
Agreement, Purchaser will have all of the rights of a shareholder of the Company
with respect to the Shares from and after the date that Purchaser delivers
payment of the Purchase Price until such time as Purchaser disposes of the
Shares or the Company and/or its assignee(s) exercise(s) the Repurchase Option
or Right of First Refusal. Upon an exercise of the Repurchase Option or the
Right of First Refusal, Purchaser will have no further rights as a holder of the
Shares so purchased upon such exercise, except the right to receive payment for
the Shares so purchased in accordance with the provisions of this Agreement, and
Purchaser will promptly surrender the stock certificate(s) evidencing the Shares
so purchased to the Company for transfer or cancellation.
<PAGE> 7
8. ESCROW. As security for Purchaser's faithful performance of this
Agreement, Purchaser agrees, immediately upon receipt of the stock
certificate(s) evidencing the Shares, to deliver such certificate(s), together
with the Stock Powers executed by Purchaser and by Purchaser's spouse, if any
(with the date and number of Shares left blank), to the Secretary of the Company
or other designee of the Company ("ESCROW HOLDER"), who is hereby appointed to
hold such certificate(s) and Stock Powers in escrow and to take all such actions
and to effectuate all such transfers and/or releases of such Shares as are in
accordance with the terms of this Agreement. Escrow Holder will act solely for
the Company as its agent and not as a fiduciary. Purchaser and the Company agree
that Escrow Holder will not be liable to any party to this Agreement (or to any
other party) for any actions or omissions unless Escrow Holder is grossly
negligent or intentionally fraudulent in carrying out the duties of Escrow
Holder under this Section. Escrow Holder may rely upon any letter, notice or
other document executed by any signature purported to be genuine and may rely on
the advice of counsel and obey any order of any court with respect to the
transactions contemplated by this Agreement. The Shares will be released from
escrow upon termination of both the Repurchase Option and the Right of First
Refusal.
9. TAX CONSEQUENCES. Purchaser hereby acknowledges that Purchaser has
been informed that, unless an election is filed by the Purchaser with the
Internal Revenue Service (and, if necessary, the proper state taxing
authorities), within 30 days of the purchase of the Shares, electing pursuant to
Section 83(b) of the Internal Revenue Code (and similar state tax provisions, if
applicable) to be taxed currently on any difference between the Purchase Price
of the Shares and their fair market value on the date of purchase, there will be
a recognition of taxable income to the Purchaser, measured by the excess, if
any, of the fair market value of the Vested Shares, at the time they cease to be
Unvested Shares, over the purchase price for such Shares. Purchaser represents
that Purchaser has consulted any tax consultant(s) Purchaser deems advisable in
connection with Purchaser's purchase of the Shares and the filing of the
election under Section 83(b) and similar tax provisions. A form of Election
under Section 83(b) is attached hereto as Exhibit 3 for reference. PURCHASER
HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING ANY TAXES
RESULTING FROM SUCH ELECTION OR FOR FAILING TO FILE THE ELECTION AND PAYING
TAXES RESULTING FROM THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE UNVESTED
SHARES.
10. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
(a) LEGENDS. Purchaser understands and agrees that the Company
will place the legends set forth below or similar legends on any stock
certificate(s) evidencing the Shares, together with any other legends that may
be required by state or federal securities laws, the Company's Articles of
Incorporation or Bylaws, any other agreement between Purchaser and the Company
or any agreement between Purchaser and any third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR
<PAGE> 8
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD
BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON PUBLIC RESALE,
TRANSFER, RIGHT OF REPURCHASE AND RIGHT OF FIRST
REFUSAL OPTIONS HELD BY THE ISSUER AND/OR ITS
ASSIGNEE(S) AS SET FORTH IN A FOUNDER'S RESTRICTED
STOCK PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY
BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.
SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS AND THE
RIGHT OF REPURCHASE AND RIGHT OF FIRST REFUSAL ARE
BINDING ON TRANSFEREES OF THESE SHARES.
(b) STOP-TRANSFER INSTRUCTIONS. Purchaser agrees that, in
order to ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate "stop-transfer" instructions to its transfer
agent, if any, and if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
(c) REFUSAL TO TRANSFER. The Company will not be required (i)
to transfer on its books any Shares that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement or (ii) to treat as
owner of such Shares, or to accord the right to vote or pay dividends, to any
purchaser or other transferee to whom such Shares have been so transferred.
<PAGE> 9
11. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with any
registration of the Company's securities under the 1933 Act that, upon the
request of the Company or the underwriters managing any registered public
offering of the Company's securities, Purchaser will not sell or otherwise
dispose of any Shares without the prior written consent of the Company or such
managing underwriters, as the case may be, for a period of time (not to exceed
180 days) after the effective date of such registration requested by such
managing underwriters and subject to all restrictions as the Company or the
managing underwriters may specify for employee-shareholders generally.
12. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
the Shares will be subject to and conditioned upon compliance by the Company and
Purchaser with all applicable state and federal laws and regulations and with
all applicable requirements of any stock exchange or automated quotation system
on which the Company's common stock may be listed or quoted at the time of such
issuance or transfer.
13. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement, including its rights to repurchase Shares under the
Repurchase Option and the Right of First Refusal. This Agreement will be binding
upon and inure to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this Agreement will be
binding upon Purchaser and Purchaser's heirs, executors, administrators,
successors and assigns.
14. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the internal laws of the State of California
excluding that body of laws pertaining to conflict of laws. If any provision of
this Agreement is determined by a court of law to be illegal or unenforceable,
then such provision will be enforced to the maximum extent possible and the
other provisions will remain fully effective and enforceable.
15. NOTICES. Any notice required or permitted hereunder will be given in
writing and will be deemed effectively given upon personal delivery, three (3)
days after deposit in the United States mail by certified or registered mail
(return receipt requested), one (1) business day after its deposit with any
return receipt express courier (prepaid), or one (1) business day after
transmission by telecopier, addressed to the other party at its address (or
facsimile number, in the case of transmission by telecopier) as shown below its
signature to this Agreement, or to such other address as such party may
designate in writing from time to time to the other party.
16. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
17. HEADINGS. The captions and headings of this Agreement are included
for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of this
Agreement.
18. ENTIRE AGREEMENT. This Agreement, together with all its Exhibits,
constitutes the entire agreement and understanding of the parties with respect
to the subject
<PAGE> 10
matter of this Agreement, and supersedes all prior understandings and
agreements, whether oral or written, between the parties hereto with respect to
the specific subject matter hereof.
19. TITLE TO SHARES. The exact spelling of the name(s) under which
Purchaser will take title to the Shares is:
------------------------------------------------------------
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Purchaser desires to take title to the Shares as follows:
[ ] Individual, as separate property
[ ] Husband and wife, as community property
[ ] Joint Tenants
[x] Alone or with spouse as trustee(s) of the following trust
(including date):
--------------------------------------------------
Strauss - Hawkins Trust April 17, 1991
-------------------------------------------------------------------
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[ ] Other; please specify:
---------------------------------------------
-------------------------------------------------------------------
Purchaser's social security number is:
----------------------------------------
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in duplicate by its duly authorized representative and Purchaser has executed
this Agreement in duplicate, as of the Effective Date.
<TABLE>
<CAPTION>
COMPANY PURCHASER
<S> <C>
By: /s/ DONNA DUBINSKY /s/ JEFF HAWKINS
--------------------------------------------- -------------------------------------------
Name: Donna Dubinsky
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Title: President and Chief Financial Officer Name: Jeff Hawkins
------------------------------------------ --------------------------------------
Address: 420 Florence Avenue, Suite 100 Address:
---------------------------------------- -----------------------------------
Palo Alto, CA 94301
------------------------------------------------ -------------------------------------------
Fax: ( ) Fax: ( )
---- ------------------------------------ ---- -------------------------------
</TABLE>
[Signature Page to JD Technology, Inc. Founders' Restricted Stock Purchase
Agreement]
<PAGE> 11
LIST OF EXHIBITS
Exhibit 1: Stock Power and Assignment Separate from Stock Certificate
Exhibit 2: Spousal Consent
Exhibit 3: Election Under Section 83(b) of the Internal Revenue Code
<PAGE> 12
EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Founder's Restricted
Stock Purchase Agreement dated as of __________, 199 , (the "Agreement"), the
undersigned hereby sells, assigns and transfers unto _____________________,
__________ shares of the common stock of ________________, a California
corporation (the "Company"), standing in the undersigned's name on the books of
the Company represented by Certificate No(s). ____ delivered herewith, and does
hereby irrevocably constitute and appoint the Secretary of the Company as the
undersigned's attorney-in-fact, with full power of substitution, to transfer
said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS
AUTHORIZED BY THE AGREEMENT AND THE EXHIBITS THERETO.
Dated:
---------------------------
/s/ JEFFREY C. HAWKINS
-------------------------------------------
(Signature)
Jeffrey C. Hawkins, as an individual and as
-------------------------------------------
Trustee for The Strauss-Hawkins Trust, dated
-------------------------------------------
April 17, 1991, Jeffrey C. Hawkins and Janet
-------------------------------------------
L. Strauss, Trustors and/or Trustees
-------------------------------------------
(Please Print Name)
/s/ JANET L. STRAUSS
-------------------------------------------
(Spouse's Signature, if any)
Janet L. Strauss, as an individual and as
-------------------------------------------
Trustee for The Strauss-Hawkins Trust, dated
-------------------------------------------
April 17, 1991, Jeffrey C. Hawkins and Janet
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L. Strauss, Trustors and/or Trustees
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(Please Print Spouse's Name)
INSTRUCTION: Please do not fill in any blanks other than the signature line. The
purpose of this Stock Power and Assignment is to enable the Company and/or its
assignee(s) to acquire the shares upon exercise of the "Repurchase Option"
and/or "Right of First Refusal" set forth in the Agreement without requiring
additional signatures on the part of the Undersigned or Undersigned's Spouse (if
any).
<PAGE> 13
EXHIBIT 2
CONSENT OF SPOUSE
I, the undersigned, am the spouse of Jeff Hawkins ("Purchaser"). I have
read and hereby consent to and approve all the terms and conditions of: the
Founder's Restricted Stock Purchase Agreement (the "Agreement") dated
August 20, 1998 between Purchaser and JD Technology, Inc., a California
corporation (the "Company"), pursuant to which Purchaser has purchased 4,550,000
shares of the Company's common stock (the "Shares").
In consideration of the Company granting my spouse the right to
purchase the Shares under the Agreement, I hereby agree to be irrevocably bound
by all the terms and conditions of the Agreement (including but not limited to
the Company's Repurchase Option, the Right of First Refusal and the market
standoff agreements contained therein) and further agree that any community
property interest I may have in the Shares will be similarly bound by the
Agreement.
I hereby appoint Purchaser as my attorney-in-fact, to act in my name,
place and stead with respect to any amendment of the Agreement and with respect
to the making and filing of an election under Internal Revenue Code Section
83(b) in connection with the purchase of the Shares.
Dated: August 20, 1998
/s/ JEFFREY C. HAWKINS
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Signature of Spouse [Sign Here]
/s/ JANET L. STRAUSS
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Name of Spouse [Please Print]
[ ] Check this box if you do not have a spouse.