Unassociated Document


    INFINIUM
      LABS, INC. 

     

    STOCKHOLDER
      VESTING AGREEMENT

    


    THIS
      STOCKHOLDER VESTING AGREEMENT (this “Agreement”)
      is
      made as of January 11, 2006 (the “Effective Date’) by and between Infinium Labs,
      Inc., a Delaware corporation (the “Company”)
      on
      behalf of itself and its wholly-owned subsidiary, Infinium Labs Operating
      Corporation, and Greg Koler (“Stockholder”).
      

     

    RECITALS

     

    Stockholder
      has been issued by the Company a total of one million (1,000,000) shares of
      common stock, $.001 par value, of the Company (the “Initial Shares” which
      definition shall include any additional or substitute shares received by the
      Stockholder resulting from a stock split, reverse stock split, stock dividend,
      combination, reclassification or similar transaction). Stockholder shall also
      be
      entitled to issuance of an additional 4,000,000 (the “Future Shares” which
      definition shall include any additional or substitute shares received by the
      Stockholder resulting from a stock split, reverse stock split, stock dividend,
      combination, reclassification or similar transaction) subject to approval by
      the
      Company’s shareholders. The Company can not give any assurances that it will
      receive shareholder approval to increase its authorized common stock.
      Shareholder shall have no claim to the Future Shares, regardless of the vesting
      schedule, in the event the Company does not receive shareholder approval to
      increase its authorized common stock. The Initial Shares and Future Shares
      shall, cumulatively, be referred to as “Total Shares.” 

     

    In
      consideration of the Company’s continued employment of the Stockholder and for
      other good and valuable consideration, the Company and Stockholder each desire
      to impose: (a) certain restrictions and obligations with respect to the Total
      Shares and (b) certain vesting requirements on a portion of the Total
      Shares. Of the Total Shares, (i) the Initial Shares are vested as of the
      Effective Date and (ii) the Future Shares are Non-Vested (as that term is
      defined below).

     

    AGREEMENT

     

    NOW,
      THEREFORE, in consideration of the foregoing premises, and the covenants set
      forth herein, the receipt and sufficiency of which are hereby acknowledged,
      the
      parties agree as follows:

     

    Section
      1.  Repurchase
      Right

     

    (a)  Transfer
      Restrictions.
      Subject
      to the other provisions of this Agreement, the Stockholder agrees that the
      Total
      Shares (or any portion thereof) may not be sold, transferred by gift, pledged,
      hypothecated, or otherwise transferred or disposed of, other than by will or
      the
      laws of descent and distribution (a “Permitted
      Transfer”),
      prior
      to the date when Stockholder becomes vested in the Total Shares (or portion
      thereof) pursuant to Section 2 hereof, and any Total Shares (or portion
      thereof) shall constitute “Non-Vested Shares” until they vest as provided
      herein. Any attempt to transfer any Non-Vested Shares (or any portion thereof)
      in violation of this Section 1 shall be null and void and shall be
      disregarded by the Company. Notwithstanding the foregoing, the Stockholder
      may
      transfer Non-Vested Shares to (i) the Stockholder’s spouse, children or
      grandchildren or to a trust established by the Stockholder for the benefit
      of
      the Stockholder or his spouse, children or grandchildren, or (ii) an entity
      controlled by the Stockholder and established primarily for tax or estate
      planning purposes (each, a “Permitted
      Transferee”),
      provided in any such case that the Permitted Transferee furnishes the Company
      with a written agreement that binds the Permitted Transferee to all provisions
      of this Agreement. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (b)  Repurchase
      Right.
      The
      Non-Vested Shares shall be subject to a repurchase right in favor of the Company
      (the “Repurchase
      Right”).
      In
      the event that the Stockholder ceases to be or is removed as a employee of
      the
      Company for any reason, the Company shall, upon the date of any such
      termination, have an irrevocable, exclusive right for a period of ninety (90)
      days from such date to repurchase any portion or all of the Non-Vested Shares
      from the Stockholder, or any person receiving the Non-Vested Shares by operation
      of law or other involuntary transfer, for an aggregate purchase price of $1.00
      (the “Purchase
      Price”)
      for
      all the Non-Vested Shares.

     

    (c)  Exercise
      of Repurchase Right.
      The
      Repurchase Right may be exercised by the Company by delivery of written notice
      to Stockholder or his or her executor and a check in the amount of the Purchase
      Price for the Non-Vested Shares being repurchased. Upon delivery by the Company
      of such notice and payment, the Company shall become the legal and beneficial
      owner of the Non-Vested Shares being repurchased and all rights and interest
      therein or related thereto, and the Company shall have the right to re-transfer
      or cancel the Non-Vested Shares without further action by
      Stockholder.

     

    Section
      2.      Vesting.

     

    For
      purposes of this Agreement, the term “vest” shall mean, with respect to any
      portion of the Total Shares, that such portion is no longer considered
      Non-Vested Shares subject to repurchase as provided in Section 1. Subject
      to the other provisions of this Agreement, the Stockholder shall acquire a
      vested interest in, and the Company’s repurchase right under Section 1 shall
      accordingly lapse with respect to, the Non-Vested Shares in equal quarterly
      installments during the 24-month period beginning on the date of execution
      of
      this Agreement.

     

    Section
      3.  Sale
      Transaction. 

     

    In
      the
      event of any Sale Transaction, any Non-Vested Shares shall immediately vest
      in
      the entirety and Stockholder shall be released from the Repurchase Right and
      restrictions on transfer contained herein. The term “Sale Transaction” shall
      mean (i) a merger or consolidation in which the Company is not the surviving
      entity, (ii) the dissolution or liquidation of the Company, or (iii) sale,
      transfer or other disposition of all or substantially all of the assets of
      the
      Company, in either case other than a Sale Transaction in which the Company’s
      Members immediately prior to such transaction will hold voting securities or
      voting interests in the surviving or succeeding entity representing more than
      fifty percent (50%) of the total voting securities or voting interests of such
      surviving or succeeding entity immediately after such transaction.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section
      4.  Right
      of First Refusal.

     

    (a)
      Prior
      Notice.
      Neither
      the Stockholder nor any transferee of any Total Shares shall sell, hypothecate,
      encumber or otherwise transfer any Total Shares or any right or interest therein
      without first complying with the provisions of this Section 4 or obtaining
      the prior written consent of the Company. In the event the Stockholder desires
      to accept a bona fide third-party offer to acquire any or all of the Total
      Shares, the Stockholder shall provide the Company with written notice (the
      “Transfer
      Notice”)
      of:
      (i) the Stockholder’s intention to transfer; (ii) the name of the proposed
      transferee; (iii) the number of Total Shares to be transferred; and (iv) the
      proposed transfer price or value and terms thereof.

     

    (b)
      First
      Refusal Exercise Notice.
      The
      Company shall have the right to purchase (the “Right
      of First Refusal”)
      all
      but not less than all of the Total Shares which are described in the Transfer
      Notice (the “Offered
      Shares”)
      at any
      time during the period commencing upon receipt of the Transfer Notice and ending
      forty-five (45) days after the first date on which the Company determines that
      the Right of First Refusal may be exercised without incurring an accounting
      expense with respect to such exercise (the “Option
      Period”)
      at (i)
      the per share price or value and in accordance with the terms stated in the
      Transfer Notice (subject to Section 4(c) below) or (ii) the fair market
      value of the Offered Shares on the date on which the purchase is to be effected
      if no consideration is paid pursuant to the terms stated in the Transfer Notice,
      which Right of First Refusal shall be exercised by written notice (the
“First
      Refusal Exercise Notice”)
      to the
      Stockholder. 

     

    (c)
      Payment
      Terms.
      The
      Company shall consummate the purchase of the Offered Shares on the terms set
      forth in the Transfer Notice within 30 days after delivery of the First Refusal
      Exercise Notice; provided, however, that in the event the Transfer Notice
      provides for the payment for the Offered Shares other than in cash, the Company
      and/or its assigns shall have the right to pay for the Offered Shares by the
      discounted cash equivalent of the consideration described in the Transfer Notice
      as reasonably determined by the Company. Upon payment for the Offered Shares
      to
      the Stockholder or into escrow for the benefit of the Stockholder, the Company
      or its assigns shall become the legal and beneficial owner of the Offered Shares
      and all rights and interest therein or related thereto, and the Company shall
      have the right to transfer the Offered Shares to its own name or its assigns
      without further action by the Stockholder. 

     

    (c)
      Assignment.
      Whenever the Company shall have the right to purchase Total Shares under this
      Right of First Refusal, 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 Right of First
      Refusal.

     

    (d)
      Non-Exercise.
      If the
      Company and/or its assigns do not collectively elect to exercise the Right
      of
      First Refusal within the Option Period or such earlier time if the Company
      and/or its assigns notifies the Stockholder that it will not exercise the Right
      of First Refusal, then the Stockholder may transfer the Shares upon the terms
      and conditions stated in the Transfer Notice, provided that (i) the transfer
      is
      made within 90 days of the date the Company and/or its assigns notify the
      Stockholder that the Right of First Refusal will not be exercised ; and (ii)
      the
      transferee agrees in writing that such Total Shares shall be held subject to
      the
      provisions of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e)
      Termination
      of Right of First Refusal.
      The
      provisions of this Right of First Refusal shall terminate as to all Total Shares
      upon the closing of the first sale 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, of the
      Company’s Common Stock.

     

    Section
      5.  Tax
      Election

     

    The
      vesting of the Total Shares under this Agreement may result in adverse tax
      consequences for the Stockholder that may be avoided or mitigated by filing
      an
      election under Section 83(b) of the Internal Revenue Code of 1986, as
      amended. The
      Stockholder should consult with his or her personal tax advisor to determine
      the
      tax consequences of entering into this Agreement and the advantages and
      disadvantages of filing the Section 83(b) election.
      The
      Stockholder agrees to provide the Company with a copy of any timely election
      made pursuant to Section 83(b) or similar provision of state law. If
      Stockholder makes a timely election, Stockholder agrees to promptly pay to
      the
      Company any amount necessary to satisfy applicable federal, state and local
      income and employment tax withholding requirements. 

     

    Section
      6.  Spousal
      Consent

     

    If
      requested by the Company and if the Stockholder is, on the date of execution
      of
      this Agreement, married or later becomes married or remarries, the Stockholder
      agrees to use his best efforts to obtain and deliver to the Company the Consent
      of Spouse attached hereto as Exhibit A.

     

    Section
      7.  Notices

     

    Any
      notice required or permitted to be given hereunder by the Company shall be
      given
      in writing at the then-current address listed for the Stockholder on the books
      and records of the Company.

     

    Section
      8.  Governing
      Law, Severability

     

    The
      parties intend that this Agreement shall be governed by and construed in
      accordance with the laws of the State of Washington. Any provision of this
      Agreement that is deemed invalid or unenforceable shall be ineffective to the
      extent of such invalidity or unenforceability, without rendering invalid or
      unenforceable the remaining provisions of this Agreement. If any provision
      of
      this Agreement is held to be invalid or unenforceable, it is the intention
      of
      the parties that such invalid or unenforceable provision shall be replaced
      with
      a valid and enforceable provision as like in tenor to the invalid or
      unenforceable provision as is possible.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Section
      9.  Entire
      Agreement

     

    This
      Agreement constitutes the entire agreement of the parties relating to the
      subject matter hereof, and supersede all prior communications, representations
      or agreements, verbal or written, among the parties relating to the subject
      matter hereof. There are no promises, terms, conditions, obligations,
      representations or warranties other than those contained in this
      Agreement.

     

    IN
      WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
      first set forth above.

     

    COMPANY:

    


    Infinium
      Labs, Inc. on behalf of itself and its wholly-owned subsidiary Infinium Labs
      Operating Corporation 

    


    


    By:/s/
      Richard Angelotti

    Richard
      Angelotti

    Chairman
      of Compensation Committee

    


    


    STOCKHOLDER:

    


    


    By:/s/
      Greg Koler

    Greg
      Koler

    


    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    EXHIBIT
      A

     

    CONSENT
      OF SPOUSE 

    


    


    I,
         ,
      spouse
      of Greg
      Koler,
      have
      read and approved the foregoing Stockholder Vesting Agreement. In consideration
      of the right of my spouse to acquire a membership interest in Infinium Labs,
      Inc. as set forth in such Agreement, I hereby appoint my spouse as my
      attorney-in-fact in respect to the exercise of any rights of such Agreement
      insofar as I may have any rights under such community property laws of the
      State
      of Washington or similar laws relating to marital property in effect in the
      Grand Duchy of Luxembourg or any subsequent residence as of the date of the
      signing of the foregoing Agreement.

    


    


    
      	Dated: _____________ 	 	
               By:

            	 
	 	 	 	
               Signature

            
	 	 	 	 
	 	 	 	 
	 	 	 	
               Printed
                Name