Restricted Stock Purchase Agreement - iBEAM Broadcasting Corp. and Frederic Seegal
iBEAM BROADCASTING CORPORATION
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (the "Agreement") is made as of
the 25th day of January, 2000 by and between iBEAM Broadcasting Corporation, a
Delaware corporation (the "Company"), and Frederic Seegal (the "Purchaser").
RECITALS
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WHEREAS, Mr. Seegal and the Company have entered into a Consulting
Agreement of even date herewith, pursuant to which Mr. Seegal will provide
consulting services to Company from time to time as reasonably requested by the
Company;
NOW, THEREFORE, In consideration of the mutual covenants and
representations herein set forth, the Company and Purchaser agree as follows:
1. Purchase and Sale of the Shares. Subject to the terms and conditions
of this Agreement, the Company hereby agrees to sell to Purchaser, and
Purchaser agrees to purchase from the Company, 660,000 shares of the Company's
Common Stock (the "Shares") at a per share price of $6.66 (the "Purchase
Price") for an aggregate purchase price of $4,395,600 (the "Aggregate Purchase
Price").
2. Payment of the Purchase Price at the Closing. The purchase and sale of
the Shares shall occur at a closing (the "Closing") to be held as of January
25, 2000. At the Closing, Purchaser shall pay the Aggregate Purchase Price by
(a) delivering the promissory note (the "Note") in the form attached hereto as
Exhibit A, in the amount of $1,999,998, together with the execution and
delivery by the Purchaser of the Security Agreement attached hereto as Exhibit
B and (b) delivering cash by check or wire transfer in the amount of
$2,395,602. The Company will, promptly after payment of the Aggregate Purchase
Price, issue a stock certificate representing the Shares registered in the name
of the Purchaser.
3. Repurchase Option.
(a) In the event that Purchaser's Continuous Status as a Service
Provider (as defined below) terminates for any or no reason, including
resignation, involuntary termination, death or Disability (as defined below)
(collectively, a "Termination"), the Company shall upon the date of such
Termination (as reasonably fixed and determined by the Company) (the
"Termination Date") have an irrevocable right (the "Repurchase Option") to
repurchase all or a portion of the Unvested Shares (as defined in Section 4
below) at the Purchase Price per Unvested Share (subject to adjustment as set
forth in Section 11 hereof) (the "Repurchase Price").
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(b) The Repurchase Option shall be exercisable by the Company within
thirty (30) days following the Termination Date by delivering or mailing to
Purchaser or Purchaser's executor (i) written notice in the manner provided for
in Section 14 hereof, and (ii) a check and/or cancellation of the Note in the
amount of the aggregate Repurchase Price. Upon delivery of such notice and the
payment of the aggregate Repurchase Price as described above, the Company shall
become the legal and beneficial owner of the Shares being repurchased and all
rights and interests therein or relating thereto, and the Company shall have
the right to retain and transfer to its own name the number of Shares being
repurchased by the Company.
(c) Nothing in this Agreement shall affect in any manner whatsoever
the right or power of the Company, or a parent or subsidiary of the Company, or
their respective stockholders from removing or otherwise terminating
Purchaser's service provider relationship with the Company.
(d) The Company may assign its rights and delegate its duties under
this Agreement, including the Repurchase Option. Accordingly, whenever the
Company shall have the right to repurchase Shares hereunder, the Company may
designate and assign one or more employees, officers, directors or stockholders
of the Company or other persons or organizations to exercise all or a part of
the Company's Repurchase Option under this Agreement.
(e) "Continuous Status as a Service Provider" means that the
Purchaser's relationship with the Company or any subsidiary of the Company as a
service provider is not interrupted or terminated. Continuous Status as a
Service Provider shall not be considered interrupted in the case of (i) any
leave of absence approved by the Company, or (ii) transfers between locations
of the Company or between the Company, its Parent, any Subsidiary, or any
successor. Service as a director of the Company without a contemporaneous
services relationship shall not be sufficient to maintain Purchaser's
Continuous Status as a Service Provider.
4. Release of Shares From Repurchase Option. As of January 25, 2000 (the
"Vesting Commencement Date"), all of the Shares shall be Unvested Shares. Six
forty-eighth (6/48th) of the Shares shall become Vested Shares six (6) months
after the Vesting Commencement Date and one forty-eighth (1/48th) of the
Unvested Shares shall become Vested Shares each month thereafter, provided in
each case that the Purchaser's Continuous Status as a Service Provider has not
terminated for any reason or for no reason prior to the date of any such
release.
5. Company's Right of First Refusal. Before any Shares held by Purchaser
or any transferee (either being sometimes referred to herein as the "Holder")
may be sold or otherwise transferred (including transfer by gift or operation
of law), the Company or its assignee(s) shall have a right of first refusal to
purchase the 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 shall
deliver to the Company a written notice (the "Notice") stating: (i) the
Holder's bona fide intention to sell or otherwise transfer such Shares; (ii)
the name of each proposed purchaser or other transferee ("Proposed
Transferee"); (iii) the number of Shares to be transferred to each Proposed
Transferee; and (iv) the bona fide cash price or other consideration for which
the Holder proposes to transfer the
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Shares (the "Offered Price"), and the Holder shall offer the Shares at the
Offered Price to the Company or its assignee(s).
(b) Exercise of Right of First Refusal. At any time within thirty
(30) days after receipt 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 Shares proposed to be transferred to any one or more of the
Proposed Transferees, at the purchase price determined in accordance with
subsection (c) below.
(c) Purchase Price. The purchase price for the Shares purchased by
the Company or its assignee(s) under this Section shall be the Offered Price.
If the Offered Price includes consideration other than cash, the cash
equivalent value of the non-cash consideration shall be determined by the Board
in good faith.
(d) Payment. Payment of the purchase price shall be made, at the
option of the Company or its assignee(s), in cash (by check), by cancellation
of all or a portion of any outstanding indebtedness of the Holder to the
Company (or, in the case of repurchase by an assignee, to the assignee), or by
any combination thereof within 30 days after receipt of the Notice or in the
manner and at the times set forth in the Notice.
(e) Holder's Right to Transfer. If all of the 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 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, that any such sale
or other transfer is effected in accordance with any applicable securities laws
and that the Proposed Transferee agrees in writing that the provisions of this
Section shall continue to apply to the Shares in the hands of such Proposed
Transferee. If the Shares described in the Notice are not transferred to the
Proposed Transferee within such period, a new Notice shall be given to the
Company, and the Company and/or its assignees shall again be offered the Right
of First Refusal before any Shares held by the Holder may be sold or otherwise
transferred.
(f) Exception for Certain Family Transfers. Anything to the contrary
contained in this Section notwithstanding, the transfer of any or all of the
Shares during the Purchaser's lifetime or on the Purchaser's death by will or
intestacy to the Purchaser's immediate family or a trust for the benefit of the
Purchaser's immediate family shall be exempt from the provisions of this
Section. "Immediate Family" as used herein shall mean spouse, lineal
descendant or antecedent, father, mother, brother or sister. In such case, the
transferee or other recipient shall receive and hold the Shares so transferred
subject to the provisions of this Section, and there shall be no further
transfer of such Shares except in accordance with the terms of this Section.
(g) Termination of Right of First Refusal. The Right of First Refusal
shall terminate as to any Shares upon 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
Securities Act of 1933, as amended.
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6. Representations of Purchaser. In connection with the Purchaser's
purchase of the Shares, Purchaser hereby represents and warrants to the Company
as follows:
(a) Investment Intent; Capacity to Protect Interests. The Purchaser
is purchasing the Shares solely for his own account for investment and not with
a view to or for sale in connection with any distribution of the Shares or any
portion thereof and not with any present intention of selling, offering to sell
or otherwise disposing of or distributing the Shares or any portion thereof in
any transaction other than a transaction exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser also
represents that the entire legal and beneficial interest of the Shares is being
purchased, and will be held, for the Purchaser's account only, and neither in
whole or in part for any other person. The Purchaser either has a pre-existing
business or personal relationship with the Company or one or more of its
officers, directors or controlling persons or by reason of the Purchaser's
business or financial experience or the business or financial experience of the
Purchaser's professional advisors who are unaffiliated with and who are not
compensated by the Company or any affiliate or selling agent of the Company,
directly or indirectly, could be reasonably assumed to have the capacity to
evaluate the merits and risks of an investment in the Company and to protect
the Purchaser's own interests in connection with this transaction.
(b) Residence. The Purchaser's principal residence is New York.
(c) Information Concerning Company. The Purchaser is knowledgeable
about the Company's plans, operations and financial condition, knows that the
Company is a highly speculative business and has heretofore received all such
information as the Purchaser has deemed necessary and appropriate to enable the
Purchaser to evaluate the financial risk inherent in making an investment in
the Shares, and the Purchaser has satisfactory and complete information
concerning the business and financial condition of the Company.
(d) Economic Risk. The Purchaser realizes that the purchase of the
Shares will be a highly speculative investment and involves a high degree of
risk, and the Purchaser is able, without impairing his financial condition, to
hold the Shares for an indefinite period of time and to suffer a complete loss
on the Purchaser's investment.
(e) Restricted Securities. The Purchaser understands and acknowledges
that:
(i) The sale of the Shares has not been registered under the
Securities Act, and the Shares must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available (such as Rule 144 or the resale provisions of Rule 701 under the
Securities Act) and the Company is under no obligation to register the Shares;
(ii) The Purchaser understands that the share certificate
representing the Shares will be stamped with the legends specified in Section 9
hereof; and
(iii) The Purchaser understands that the Company will make a
notation in its records of the aforementioned restrictions on transfer and
legends.
(f) Disposition under the Securities Act. The Purchaser understands
that the Shares are restricted securities within the meaning of Rule 144
promulgated under the Securities
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Act; that the exemption from registration under Rule 144 will not be available
in any event for at least one year from the date of purchase and payment of the
Shares (unless Rule 701 promulgated under the Securities Act is available), and
even then will not be available unless (i) a public trading market then exists
for the Common Stock of the Company, (ii) adequate information concerning the
Company is then available to the public, and (iii) other terms and conditions
of Rule 144 are complied with; and that any sale of the Shares may be made only
in limited amounts in accordance with such terms and conditions. The Purchaser
further understands that the resale provisions of Rule 701, if available, will
not apply until 90 days after the Company becomes subject to the reporting
obligations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). There can be no assurance that the requirements of Rule 144
or Rule 701 will be met, or that the stock will ever be saleable.
(g) Further Limitations on Disposition. Without in any way limiting
the representations set forth above, the Purchaser further agrees that he shall
in no event make any disposition of all or any portion of the Shares unless and
until:
(i) There is then in effect a Registration Statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with said Registration Statement; (B) the resale provisions of
Rule 701 or Rule 144 are available in the opinion of counsel to the Company; or
(C)(1) the Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, (2) the Purchaser shall
have furnished the Company with an opinion of the Purchaser's counsel to the
effect that such disposition will not require registration of such Shares under
the Securities Act, and (3) such opinion of the Purchaser's counsel shall have
been concurred with by counsel for the Company and the Company shall have
advised the Purchaser of such concurrence; and,
(ii) Any transferee of the Shares agrees in writing to be bound
by all terms of this Agreement, including the "market stand-off" provisions set
forth in Section 10 hereof.
(h) Valuation of Common Stock. The Purchaser understands that the
Shares have been valued by the Board of Directors and that the Company believes
this valuation represents a fair attempt at reaching an accurate appraisal of
their worth. The Purchaser understands, however, that the Company can give no
assurances that such price is in fact the fair market value of the Shares.
(i) Section 83(b) Election. The Purchaser understands that
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), taxes
as ordinary income the difference between the amount paid for the Shares and
the fair market value of the Shares as of the date any restrictions on the
Shares lapse. In this context, "restriction" means the right of the Company to
buy back the Unvested Shares pursuant to the Repurchase Option. The Purchaser
understands that he may elect to be taxed at the time the Unvested Shares are
purchased rather than when and as the Repurchase Option expires by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within 30 days from the date of purchase. Even if the fair market value of the
Unvested Shares equals the amount paid for the Unvested Shares, 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. The Purchaser
understands that failure to make this filing timely will result in the
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recognition of ordinary income by the Purchaser, as the Repurchase Option
lapses, on the difference between the purchase price and the fair market value
of the Unvested Shares at the time such restrictions lapse.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE RESPONSIBILITY
AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF
THE PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON
THE PURCHASER'S BEHALF.
7. Rights as Stockholder. Subject to the terms and conditions of this
Agreement, the Purchaser shall have all of the rights of a stockholder of the
Company with respect to the Shares from and after the date that the Purchaser
delivers full payment for the Shares until such time as the Purchaser disposes
of the Shares or the Company and/or its assignee(s) exercises the Repurchase
Option hereunder. Upon such exercise or disposition, the Purchaser shall have
no further rights as a holder of the Shares so purchased except the right to
receive payment for the Shares so purchased in accordance with the provisions of
this Agreement, and the Purchaser shall forthwith cause the certificate(s)
evidencing the Shares so purchased to be surrendered to the Company for transfer
or cancellation.
8. Escrow. As security for the faithful performance of this Agreement, the
Purchaser agrees, immediately upon receipt of the certificate(s) evidencing the
Shares, to deliver such certificate(s), together with a stock power in the form
of Exhibit D attached hereto, executed by the Purchaser and by the Purchaser's
spouse, if any (with the date and number of Shares left blank), to the Secretary
of the Company or its designee ("Escrow Agent"); said documents are to be held
by the Escrow Agent pursuant to the Joint Escrow Instructions of the Company and
the Purchaser set forth in Exhibit E attached hereto and incorporated by this
reference, which instructions shall also be delivered to the Escrow Agent after
the Closing.
9. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. The Purchaser understands and agrees that the Company
shall cause the legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing ownership of the
Shares together with any other legends that may be required by other agreements
and by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER THE
ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER IS IN
COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
REPURCHASE AND A RIGHT OF FIRST
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REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AND A 180-DAY MARKET
STANDOFF PROVISION, AS SET FORTH IN THE 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 MARKET STANDOFF PROVISION IS BINDING ON TRANSFEREES OF
THESE SHARES.
(b) Stop-Transfer Notices. The 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, and
that, 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 shall 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 shall have been so
transferred.
10. Market Stand-off Agreement. The Purchaser hereby agrees, to the extent
requested by the managing underwriters in the initial public offering of the
Company's capital stock, that, without the prior written consent of such
managing underwriters, the Purchaser will not offer, sell, contract to sell,
grant any option to purchase, make any short sale or otherwise dispose of, make
a distribution of, or otherwise reduce the economic risk of owning any capital
stock of the Company held by or on behalf of the Purchaser or beneficially owned
by the Purchaser in accordance with the rules and regulations of the Securities
and Exchange Commission for a period of up to 180 days after the date of the
final prospectus relating to the Company's initial public offering. This
restriction shall be binding on any transferee of shares from the Purchaser.
11. Adjustment for Stock Split. All references to the number of Shares,
the Purchase Price and the Repurchase Price of the Shares in this Agreement
shall be appropriately adjusted to reflect any stock split, stock dividend,
combination, reclassification or the like applicable to the Shares which may be
made by the Company after the date of this Agreement.
12. Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon the Purchaser and his or her heirs, executors, administrators, successors
and assigns.
13. Governing Law; Severability, Arbitration of Disputes. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California, excluding that body of law pertaining to conflicts of law. Should
any provision of this Agreement be determined to be illegal or unenforceable,
the other provisions shall nevertheless remain effective and shall remain
enforceable. Any dispute under this Agreement shall be resolved by binding
arbitration pursuant to the Commercial Arbitration Rules of the American
Arbitration Association to be held in Palo Alto, California.
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14. Notices. Any notice, demand, offer or request required or permitted
to be given by either the Company or the Purchaser pursuant to the terms of
this Agreement shall be in writing and shall be deemed effectively given the
earlier of (i) when received, (ii) when delivered personally, (iii) one (1)
business day after being delivered by facsimile (with receipt of appropriate
confirmation), (iv) one (1) business day after being deposited with an
overnight courier service or (v) four (4) days after being deposited in the
U.S. mail, First Class with postage prepaid, and addressed to the parties at
the addresses provided to the Company (which the Company agrees to disclose to
the other parties upon request) or such other address as a party may request by
notifying the other in writing.
15. 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.
16. Entire Agreement. This Agreement and the Consulting Agreement dated
this date constitute the entire agreement of the parties and supersedes in its
entirety all prior undertakings and agreements of the Company and the Purchaser
with respect to the subject matter hereof and thereof.
17. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same agreement.
18. No Assurance of Service Provider Relationship. Nothing in this
Agreement shall limit or restrict in any way the Company's ability or
Purchaser's ability to terminate the Service Provider Relationship for any
reason or no reason, with or without cause.
[Signature Page Follows]
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By the Purchaser's signature below, the Purchaser represents that the
Purchaser hereby accepts this Agreement subject to all of the terms and
provisions thereof. The Purchaser understands that Wilson Sonsini Goodrich &
Rosati, P.C. is acting as counsel to the Company and not as counsel to the
Purchaser. The Purchaser has reviewed this Agreement in its entirety, has had
an opportunity to obtain the advice of the Purchaser's own counsel prior to
executing this Agreement and fully understands all provisions of this
Agreement.
THE PURCHASER iBEAM BROADCASTING
a Delaware corporation
/s/ Fredric Seegal /s/ Peter Desnoes
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Signature Signature of Authorized Signatory
Frederic Seegal Peter Desnoes
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Print Name Print Name and Title
Address:
[SIGNATURE PAGE TO RESTRICTED STOCK PURCHASE AGREEMENT]
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EXHIBIT A
NOTE
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$1,999,998.00 Sunnyvale, California
January 25, 2000
FOR VALUE RECEIVED, Frederic Seegal promises to pay to iBEAM Broadcasting
Corporation, a Delaware corporation (the "Company"), or order, at its principal
office the principal sum of $1,999,998 together with interest on the unpaid
principal hereof from the date hereof at the rate of six and one-half percent
(6.5%) per annum, compounded semiannually.
Principal and interest shall be due and payable on the earlier of (i)
January 25, 2004, (ii) from any proceeds from the sale of the Company's
securities by the undersigned (net of taxes) which shall be used to repay the
principal and interest owing hereunder immediately upon receipt of such proceeds
by the undersigned and (iii) ninety (90) days after termination of the
undersigned as a service provider of the Company for any reason or no reason,
provided such 90-day period shall be increased to 180 days if the Company's
securities are publicly traded and the undersigned is restricted from selling
such securities under applicable securities laws or an affiliate's agreement.
Payment of principal and interest shall be made in lawful money of the United
States of America.
The undersigned may at any time prepay all or any portion of the principal
or interest owing hereunder.
This Note is subject to the terms of the Restricted Stock Purchase
Agreement, dated as of January 25, 2000. This Note is secured in part by a
pledge of the Company's common stock under the terms of a Security Agreement of
even date herewith and is subject to all the provisions thereof.
The holder of this Note shall have full recourse against the undersigned,
and shall not be required to proceed against the collateral securing this Note
in the event of default.
Should any action be instituted for the collection of this Note, the
reasonable costs and attorneys' fees therein of the holder shall be paid by the
undersigned.
Signature: _______________________________
Name: ____________________________________
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EXHIBIT B
SECURITY AGREEMENT
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This Security Agreement is made as of January 25, 2000 between iBEAM
Broadcasting Corporation, a Delaware corporation ("Pledgee"), and Frederic
Seegal ("Pledgor").
RECITALS
Pursuant to Pledgor's purchase of shares of Pledgee's common stock ("Common
Stock") under the Restricted Stock Purchase Agreement dated January 25, 2000
(the "Purchase Agreement"), between Pledgor and Pledgee, Pledgee has agreed to
accept delivery of a promissory note (the "Note"), relating to Pledgor's
purchase of 300,300 shares of Pledgee's Common Stock (the "Pledged Shares") at a
per share price of $6.66 per share, for a total purchase price of $1,999,998.
The Note and the obligations thereunder are as set forth in Exhibit A to the
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Purchase Agreement.
NOW, THEREFORE, it is agreed as follows:
1. Creation and Description of Security Interest. In consideration of the
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transfer of the Shares to Pledgor under the Purchase Agreement, Pledgor,
pursuant to the California Commercial Code, hereby pledges all of such Pledged
Shares (herein sometimes referred to as the "Collateral") represented by
certificate number ______, duly endorsed in blank or with executed stock powers,
and herewith delivers said certificate to the Secretary of Pledgee
("Pledgeholder"), who shall hold said certificate subject to the terms and
conditions of this Security Agreement.
The pledged stock (together with an executed blank stock assignment for use
in transferring all or a portion of the Pledged Shares to Pledgee if, as and
when required pursuant to this Security Agreement) shall be held by the
Pledgeholder as security for the repayment of the Note, and any extensions or
renewals thereof, to be executed by Pledgor pursuant to the terms of the
Purchase Agreement, and the Pledgeholder shall not encumber or dispose of such
Pledged Shares except in accordance with the provisions of this Security
Agreement and the Purchase Agreement.
2. Pledgor's Representations and Covenants. To induce Pledgee to enter
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into this Security Agreement, Pledgor represents and covenants to Pledgee, its
successors and assigns, as follows:
(a) Payment of Indebtedness. Pledgor will pay the principal sum of
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the Note secured hereby, together with interest thereon, at the time and in the
manner provided in the Note.
(b) Encumbrances. The Pledged Shares are free of all other
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encumbrances, defenses and liens, and Pledgor will not further encumber the
Pledged Shares without the prior written consent of Pledgee.
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(c) Margin Regulations. In the event that Pledgee's Common Stock is
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now or later becomes margin-listed by the Federal Reserve Board and Pledgee is
classified as a "lender" within the meaning of the regulations under Part 207
of Title 12 of the Code of Federal Regulations ("Regulation G"), Pledgor agrees
to cooperate with Pledgee in making any amendments to the Note or providing any
additional collateral as may be necessary to comply with such regulations.
3. Voting Rights. During the term of this pledge and so long as all
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payments of principal and interest are made as they become due under the terms
of the Note, Pledgor shall have the right to vote all of the Pledged Shares
hereunder.
4. Stock Adjustments. In the event that during the term of the pledge
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any stock dividend, reclassification, readjustment or other changes are
declared or made in the capital structure of Pledgee, all new, substituted and
additional shares or other securities issued by reason of any such change shall
be delivered to and held by the Pledgee under the terms of this Security
Agreement in the same manner as the Pledged Shares originally pledged
hereunder. In the event of substitution of such securities, Pledgor, Pledgee
and Pledgeholder shall cooperate and execute such documents as are reasonable
so as to provide for the substitution of such Collateral and, upon such
substitution, references to "Pledged Shares" in this Security Agreement shall
include the substituted shares of capital stock of Pledgor as a result thereof.
5. Options and Rights. In the event that, during the term of this pledge,
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subscription options or other rights shall be issued in connection with the
Pledged Shares, such rights or options shall be the property of Pledgor and, if
exercised by Pledgor, all new stock or other securities so acquired by Pledgor
as it relates to the Pledged Shares then held by Pledgeholder shall be
immediately delivered to Pledgeholder, to be held under the terms of this
Security Agreement in the same manner as the Pledged Shares.
6. Default. Pledgor shall be deemed to be in default of the Note and of
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this Security Agreement in the event:
(a) Payment of principal or interest on the Note shall be delinquent
for a period of 10 days or more; or
(b) Pledgor fails to perform any of the covenants set forth in the
Purchase Agreement or contained in this Security Agreement for a period of 10
days after written notice thereof from Pledgee.
In the case of an event of default, as set forth above, Pledgee shall
have the right to accelerate payment of the Note upon notice to Pledgor, and
Pledgee shall thereafter be entitled to pursue its remedies under the California
Commercial Code.
7. Release of Collateral. Subject to any applicable contrary rules under
---------------------
Regulation G, there shall be released from this pledge a portion of Pledged
Shares held by Pledgeholder hereunder upon payments of the principal of the
Note. The number of Pledged Shares which shall be released shall be that number
of full shares which bears the same proportion to the initial number of Pledged
Shares hereunder as the payment of principal bears to the initial full principal
amount of the Note.
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<PAGE>
8. Withdrawal or Substitution of Collateral. Pledgor shall not sell,
----------------------------------------
withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
9. Term. This pledge of shares shall continue until the payment of all
----
indebtedness secured hereby, at which time the remaining pledged stock shall be
promptly delivered to Pledgor, subject to the provisions for prior release of a
portion of the Collateral as provided in paragraph 7 above and subject to the
terms of the Purchase Agreement.
10. Insolvency. Pledgor agrees that if a bankruptcy or insolvency
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proceeding is instituted by or against it, or if a receiver is appointed for
the property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due
and payable, and Pledgee may proceed as provided in the case of default.
11. Pledgeholder Liability. In the absence of willful or gross
----------------------
negligence, Pledgeholder shall not be liable to any party for any of his acts,
or omissions to act, as Pledgeholder.
12. Invalidity of Particular Provisions. Pledgor and Pledgee agree that
-----------------------------------
the enforceability or invalidity of any provision or provisions of this
Security Agreement shall not render any other provision or provisions herein
contained unenforceable or invalid.
13. Successors or Assigns. Pledgor and Pledgee agree that all of the
---------------------
terms of this Security Agreement shall be binding on their respective
successors and assigns, and that the term "Pledgor" and the term "Pledgee" as
used herein shall be deemed to include, for all purposes, the respective
designees, successors, assigns, heirs, executors and administrators.
14. Governing Law. This Security Agreement shall be interpreted and
-------------
governed under the internal substantive laws, but not the choice of law rules,
of California.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PLEDGOR
----------------------------------------
Signature
Frederic Seegal
----------------------------------------
Print Name
Address:
----------------------------------------
----------------------------------------
PLEDGEE iBEAM BROADCASTING
CORPORATION
a Delaware corporation
----------------------------------------
Signature
----------------------------------------
Print Name
----------------------------------------
Title
PLEDGEHOLDER
----------------------------------------
Secretary of
iBEAM Broadcasting Corporation
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<PAGE>
EXHIBIT C
ELECTION UNDER SECTION 83(b) OF
--------------------------------
THE INTERNAL REVENUE CODE OF 1986
---------------------------------
The undersigned taxpayer hereby elects, pursuant to the above-referenced
Federal Tax Code, to include in taxpayer's gross income for the current taxable
year, the amount of any compensation taxable to taxpayer in connection with his
receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME: TAXPAYER: Frederic Seegal
SPOUSE: [__________________]
ADDRESS:
IDENTIFICATION NUMBER: TAXPAYER: [__________________]
SPOUSE: [__________________]
TAXABLE YEAR: 2000
2. The property with respect to which the election is made is described as
follows: 660,000 shares of Common Stock (the "Shares") of iBEAM Broadcasting
Corporation (the "Company").
3. The date on which the property was transferred is: January 25, 2000.
4. The property is subject to the following restrictions: The Shares
may be repurchased by the Company, or its assignee, on certain events. This
right lapses over time based on the continued performance of services by the
taxpayer.
5. 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, of such property is: $4,395,600.
6. The amount (if any) paid for such property is: Contribution to the
Company of intellectual property valued at $4,395,600.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
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except with the consent of the Commissioner.
-------------------------------------------
Dated: _________, 2000 ______________________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: _________, 2000 ______________________________________
Spouse of Taxpayer
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<PAGE>
INFORMATION LETTER RE: SECTION 83(b) ELECTION
This information is supplied to you in connection with your recent purchase
of shares of Common Stock of iBEAM Broadcasting Corporation (the "Company"), at
a purchase price equal to the current fair market value of the stock and subject
to an Agreement for purchase of shares that gives the Company the right to
repurchase the shares under the terms stated in the Agreement in the event that
you terminate your continuous status as an employee, consultant or director of
the Company prior to the full vesting.
Section 83 of the Internal Revenue Code taxes as ordinary income the
difference between the amount paid for the stock and its fair market value as of
the date any restrictions on that stock lapse. In this context, a restriction
means the right of the Company to buy back the stock at less than its fair
market value, in connection with the termination of your continuous status as an
employee, consultant or director of the Company, which right expires as your
stock vests pursuant to the Agreement. Thus, if the Shares are worth $12.50 per
share at the time the first 50% of the Shares becomes fully vested (no longer
subject to repurchase) and if you purchased such Shares for $0.01 per share,
then you would be required to report ordinary income in the amount of $12.49 for
each such Share in the first year that such Shares are first vested (no longer
subject to repurchase). Upon the vesting of the final portion of the Shares and
if the fair market value of the Shares at that time is $15.00 per share, then
you would be required to report ordinary income in the amount of $14.99 per
share for the tax year in which such final portion of the Shares is no longer
subject to repurchase.
To avoid the assessment of ordinary income tax at the time the restrictions
end, there is an election that can be filed under Section 83(b). This is an
election to include in income in the year the stock is purchased the difference
between what is paid for the stock and its then fair market value. Even though
in your case the fair market value of the stock may equal the amount paid and
therefore there may be no income at this time, the Internal Revenue Service
nonetheless requires that the election be filed in order to avoid adverse tax
consequences in the future.
One executed copy of the 83(b) election form must be filed with the
----------------------
Internal Revenue Service within 30 days of the purchase of the shares. One
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executed copy should be placed with the Company's records and one executed copy
should be filed along with your federal income tax return for this year.
For your information, the address of the IRS is as follows:
Internal Revenue Service
5045 East Butler Avenue
Fresno, California 93888
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<PAGE>
EXHIBIT D
STOCK POWER AND ASSIGNMENT
--------------------------
SEPARATE FROM CERTIFICATE
-------------------------
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Purchase
Agreement dated as of January 25, 2000, the undersigned hereby sells, assigns
and transfers unto ___________________________________, ______________________
(______) shares of Common Stock of iBEAM Broadcasting Corporation, a Delaware
corporation (the "Company"), standing in the undersigned's name on the books of
said Company represented by certificate number _______ delivered herewith, and
does hereby irrevocably constitute and appoint _________________________ as
attorney-in-fact, with full power of substitution, to transfer said stock on the
books of said Company.
Spouse of Purchaser Purchaser
---------------------------------- ----------------------------------
(Signature) (Signature)
Frederic Seegal
---------------------------------- ----------------------------------
(Please Print Name) (Please Print Name)
This Assignment Separate From Certificate was executed in conjunction with the
terms of a Restricted Stock Purchase Agreement between the above assignor iBEAM
Broadcasting Corporation dated as of January 25, 2000.
Instruction: Please do not fill in any blanks other than the signature line.
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<PAGE>
EXHIBIT E
JOINT ESCROW INSTRUCTIONS
-------------------------
January 25, 2000
Secretary
iBEAM Broadcasting Corporation
165 Almanor, Suite 100
Sunnyvale, CA 94086
Dear Mr. Secretary:
As Escrow Agent for both iBEAM Broadcasting Corporation, a Delaware
corporation (the "Company"), and Frederic Seegal ("Purchaser"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to the
terms of that certain Restricted Stock Purchase Agreement (the "Agreement"),
dated as of January 25, 2000, to which a copy of these Joint Escrow Instructions
is attached, in accordance with the following instructions:
1. In the event that the Company and/or any assignee of the Company
(referred to collectively for convenience herein as the "Company") exercises
the Repurchase Option set forth in the Agreement, the Company shall give to
Purchaser and you a written notice specifying the number of shares of stock to
be purchased, the purchase price, and the time for a closing hereunder at the
principal office of the Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice
in accordance with the terms of said notice.
2. At the closing, you are directed to (a) date the stock assignments
necessary for the transfer in question, (b) fill in the number of shares being
transferred, and (c) deliver the same, together with the certificate evidencing
the shares of stock to be transferred, to the Company against the simultaneous
delivery to you of the purchase price (by check or such other form of
consideration mutually agreed to by the parties) for the number of shares of
stock being purchased pursuant to the exercise of the Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his attorney-in-
fact and agent for the term of this escrow to execute with respect to such
securities all documents necessary or appropriate to make such securities
negotiable and to complete any transaction herein contemplated.
4. Upon written request of Purchaser after each successive one year
period from the date of the Agreement, unless the Repurchase Option has been
exercised and subject to the terms of the Security Agreement dated January 25,
2000 (the "Security Agreement") between Purchaser, Company and Escrow Agent,
you will deliver to Purchaser a certificate or certificates representing
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<PAGE>
so many shares of stock as are not then subject to the Repurchase Option.
Ninety days after the date Purchaser ceases to be either an employee,
consultant or director of the Company, subject to the terms of the Security
Agreement, you will deliver to Purchaser a certificate or certificates
representing the aggregate number of shares sold and issued pursuant to the
Agreement and not purchased by the Company or its assignees pursuant to
exercise of the Repurchase Option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
subject to the terms of the Security Agreement, you shall deliver all of same to
Purchaser and shall be discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith and in the exercise of your own good judgment, and any act done or
omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or Company, excepting
only orders or process of courts of law, and are hereby expressly authorized to
comply with and obey orders, judgments or decrees of any court. In case you
obey or comply with any such order, judgment or decree, you shall not be liable
to any of the parties hereto or to any other person, firm or Company by reason
of such compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the expiration of any rights under the
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel and other experts
as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
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<PAGE>
13. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or
defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or four (4) days
following deposit in the United States Post Office, by registered or certified
mail with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses, or at such other addresses as a
party may designate by written notice to each of the other parties hereto.
COMPANY: iBEAM Broadcasting Corporation
165 Almanor, Suite 100
Sunnyvale, CA 94086
PURCHASER:
ESCROW AGENT: Secretary, iBEAM Broadcasting Corporation
165 Almanor, Suite 100
Sunnyvale, CA 94086
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
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<PAGE>
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
Very truly yours,
iBEAM BROADCASTING CORPORATION
a Delaware corporation
--------------------------------
Name:
Title:
PURCHASER:
--------------------------------
Name: Frederic Seegal
ESCROW AGENT:
-----------------------------------------
Secretary, iBEAM Broadcasting Corporation
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