MINT SOFTWARE INC.
Exhibit 99.2
MINT SOFTWARE INC.
2006 STOCK PLAN
STOCK OPTION AGREEMENT — EARLY EXERCISE
Unless otherwise defined herein, the terms defined in the 2006 Stock Plan (the “Plan”) shall
have the same defined meanings in this Stock Option Agreement (the “Option Agreement”).
| I. | NOTICE OF STOCK OPTION GRANT | ||
| Name: | |||
| Address: | |||
The undersigned Optionee has been granted an Option to purchase Common Stock of Mint Software
Inc. (the “Company”), subject to the terms and conditions of the Plan and this Option Agreement,
as follows:
Date of Grant |
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Vesting Commencement Date |
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Exercise Price per Share |
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Total Number of Shares Granted |
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Total Exercise Price |
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Type of Option
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_________ Incentive Stock Option | |||
| _________ Nonstatutory Stock Option | ||||
Term/Expiration Date: |
Vesting Schedule:
This Option shall be exercisable in whole or in part, according to the following vesting
schedule:
Twenty-five percent (25%) of the shares subject to this Option shall vest twelve (12) months
after the Vesting Commencement Date. Remaining shares shall vest over the next thirty-six (36)
months in equal monthly amounts subject to the terms and conditions of the Plan and Optionee’s
stock option agreement.
Termination Period:
This Option shall be exercisable for thirty (30) days after Optionee ceases to be a Service
Provider. Upon Optionee’s death or Disability, this Option may be exercised for six (6) months
after Optionee ceases to be Service Provider. In no event may Optionee exercise this Option after
the Term/Expiration Date as provided above.
II. AGREEMENT
X. Xxxxx of Option. The Administrator of the Company hereby grants to the Optionee named in
the Notice of Grant in Part I of the Agreement (the “Optionee”), an option (the “Option”) to
purchase the number of Shares set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the “Exercise Price”), and subject to the terms and conditions of the
Plan, which is incorporated herein by reference. In the event of a conflict between the terms and
conditions of the Plan and this Option Agreement, the terms and conditions of the Plan shall
prevail.
If designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this Option is
intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code.
Nevertheless, to the extent that it exceeds the $100,000 rule of Code Section 422(d), this Option
shall be treated as a Nonstatutory Stock Option (“NSO”).
B. Exercise of Option. This Option shall be exercisable during its term in accordance with
the provisions of Section 11 of the Plan as follows:
1. Right to Exercise.
(i) Subject to subsections 2(a)(ii) and 2(a)(iii) below, this Option shall be exercisable
cumulatively according to the vesting schedule set forth in the Notice of Grant. Alternatively, at
the election of the Optionee, this Option may be exercised in whole or in part at any time as to
Shares that have not yet vested. Vested Shares shall not be subject to the Company’s repurchase
right (as set forth in the Restricted Stock Purchase Agreement, attached hereto as Exhibit
C-1 (the “Restricted Stock Purchase Agreement”)).
(ii) As a condition to exercising this Option for unvested Shares, the Optionee and the
Company shall execute the Restricted Stock Purchase Agreement.
(iii) This Option may not be exercised for a fraction of a Share.
2. Method of Exercise. This Option shall be exercisable by delivery of an exercise notice in
the form attached as Exhibit A (the “Exercise Notice”), which shall state the election to
exercise the Option, the number of Shares with respect to which the Option is being exercised, and
such other representations and agreements as may be required by the Company. The Exercise Notice
shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This
Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise
Notice accompanied by the aggregate Exercise Price.
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No Shares shall be issued pursuant to the exercise of an Option unless such issuance and such
exercise comply with Applicable Laws. Assuming such compliance, for income tax purposes the Shares
shall be considered transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
C. Optionee‘s Representations. In the event the Shares have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised, the Optionee shall, if
required by the Company, concurrently with the exercise of all or any portion of this Option,
deliver to the Company his or her Investment Representation Statement in the form attached hereto
as Exhibit B.
D. Lock-Up Period. Optionee hereby agrees that Optionee shall not offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any Common Stock (or other securities) of the Company or enter into any swap,
hedging or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any Common Stock (or other securities) of the Company held by Optionee
(other than those included in the registration) for a period specified by the representative of the
underwriters of Common Stock (or other securities) of the Company not to exceed one hundred eighty
(180) days following the effective date of any registration statement of the Company filed under
the Securities Act (or such other period as may be requested by the Company or the underwriters to
accommodate regulatory restrictions on (i) the publication or other distribution of research
reports and (ii) analyst recommendations and opinions, including, but not limited to, the
restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions
or amendments thereto).
Optionee agrees to execute and deliver such other agreements as may be reasonably requested by
the Company or the underwriter which are consistent with the foregoing or which are necessary to
give further effect thereto. In addition, if requested by the Company or the representative of the
underwriters of Common Stock (or other securities) of the Company, Optionee shall provide, within
ten (10) days of such request, such information as may be required by the Company or such
representative in connection with the completion of any public offering of the Company’s securities
pursuant to a registration statement filed under the Securities Act. The obligations described in
this Section shall not apply to a registration relating solely to employee benefit plans on Form
S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating
solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in
the future. The Company may impose stop-transfer instructions with respect to the shares of Common
Stock (or other securities) subject to the foregoing restriction until the end of said one hundred
eighty (180) day (or other) period. Optionee agrees that any transferee of the Option or shares
acquired pursuant to the Option shall be bound by this Section.
E. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
1. cash;
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2. check;
3. consideration received by the Company under a formal cashless exercise program adopted by
the Company in connection with the Plan; or
4. surrender of other Shares which, (i) in the case of Shares acquired from the Company,
either directly or indirectly, have been owned by the Optionee, and not subject to a substantial
risk of forfeiture, for more than six (6) months on the date of surrender, and (ii) have a Fair
Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
F. Restrictions on Exercise. This Option may not be exercised until such time as the Plan has
been approved by the stockholders of the Company, or if the issuance of such Shares upon such
exercise or the method of payment of consideration for such shares would constitute a violation of
any Applicable Law.
G. Non-Transferability of Option. This Option may not be transferred in any manner otherwise
than by will or by the laws of descent or distribution and may be exercised during the lifetime of
Optionee only by Optionee. The terms of the Plan and this Option Agreement shall be binding upon
the executors, administrators, heirs, successors and assigns of the Optionee.
H. Term of Option. This Option may be exercised only within the term set out in the Notice of
Grant, and may be exercised during such term only in accordance with the Plan and the terms of this
Option.
I. Tax Obligations.
1. Withholding Taxes. Optionee agrees to make appropriate arrangements with the Company (or
the Parent or Subsidiary employing or retaining Optionee) for the satisfaction of all Federal,
state, local and foreign income and employment tax withholding requirements applicable to the
Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor the
exercise and refuse to deliver the Shares if such withholding amounts are not delivered at the time
of exercise.
2. Notice of Disqualifying Disposition of ISO Shares. If the Option granted to Optionee
herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired
pursuant to the ISO on or before the later of (1) the date two (2) years after the Date of Grant,
and (2) the date one (1) year after the date of exercise, the Optionee shall immediately notify the
Company in writing of such disposition. Optionee agrees that Optionee may be subject to income tax
withholding by the Company on the compensation income recognized by the Optionee.
3. Code Section 409 A. Under Code Section 409A, an Option that vests after December 31, 2004
that was granted with a per Share exercise price that is determined by the Internal Revenue Service
(the “IRS”) to be less than the Fair Market Value of a Share on the date of grant (a “discount
option”) may be considered “deferred compensation.” An Option that is a “discount option” may
result in (i) income recognition by the Optionee prior to the exercise
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of the Option, (ii) an additional twenty percent (20%) tax, and (iii) potential penalty and
interest charges. Optionee acknowledges that the Company cannot and has not guaranteed that the
IRS will agree that the per Share exercise price of this Option equals or exceeds the Fair Market
Value of a Share on the date of grant in a later examination. Optionee agrees that if the IRS
determines that the Option was granted with a per Share exercise price that was less than the Fair
Market Value of a Share on the date of grant, Optionee shall be solely responsible for Optionee’s
costs related to such a determination.
J. Entire Agreement, Governing Law. The Plan is incorporated herein by reference. The Plan
and this Option Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not be modified adversely
to the Optionee’s interest except by means of a writing signed by the Company and Optionee. This
Agreement is governed by the internal substantive laws but not the choice of law rules of
California.
K. No Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF
SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER
AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING OPTIONEE) AND NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER. OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND
THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED
ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT
INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY
EMPLOYING OR RETAINING OPTIONEE) TO TERMINATE OPTIONEE’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY
TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option and fully understands
all provisions of the Option. Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Administrator upon any questions arising under the Plan or
this Option. Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
[Remainder of Page Left Blank]
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OPTIONEE
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MINT SOFTWARE INC. | |||
Signature
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Signature | |||
Print Name
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Print Name | |||
| President and Chief Executive Officer | ||||
| Title | ||||
Residence Address |
[Signature Page to 2006 Stock Plan Stock Option Agreement]
EXHIBIT A
2006 STOCK PLAN
EXERCISE NOTICE
Mint Software Inc.
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: President and Chief Executive Officer
1. Exercise of Option. Effective as of today, , , the undersigned
(“Optionee”) hereby elects to exercise Optionee’s option (the “Option”) to purchase
shares of the Common Stock (the “Shares”) of Mint Software Inc. (the “Company”) under and pursuant
to the 2006 Stock Plan (the “Plan”) and the Stock Option Agreement dated (the “Option Agreement”).
2. Delivery of Payment. Optionee herewith delivers to the Company the full purchase price of
the Shares, as set forth in the Option Agreement, and any and all withholding taxes due in
connection with the exercise of the Option.
3. Representations of Optionee. Optionee acknowledges that Optionee has received, read and
understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms and
conditions.
4. Rights as Stockholder. Until the issuance of the Shares (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a stockholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. The Shares shall be issued to the
Optionee as soon as practicable after the Option is exercised in accordance with the Option
Agreement. No adjustment shall be made for a dividend or other right for which the record date is
prior to the date of issuance except as provided in Section 13 of the Plan.
5. Company’s Right of First Refusal. Before any Shares held by Optionee 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 5
(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
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 (“Purchase Price”) for the Shares purchased by the
Company or its assignee(s) under this Section 5 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 of Directors of the Company 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 thirty (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 5, 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 5 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 Optionee’s lifetime or
on the Optionee’s death by will or intestacy to the Optionee’s immediate family or a trust for the
benefit of the Optionee’s immediate family shall be exempt from the provisions of this Section 5.
“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 5, and there shall be no
further transfer of such Shares except in accordance with the terms of this Section 5.
(g) Termination of Right of First Refusal. The Right of First Refusal shall terminate as to
any Shares upon the earlier of (i) the first sale of Common Stock of the Company to the general
public, or (ii) a Change in Control in which the successor corporation has equity securities that
are publicly traded.
6. Tax Consultation. Optionee understands that Optionee may suffer adverse tax consequences
as a result of Optionee’s purchase or disposition of the Shares. Optionee represents that Optionee
has consulted with any tax consultants Optionee deems advisable in
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connection with the purchase or disposition of the Shares and that Optionee is not relying on
the Company for any tax advice.
7. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Optionee 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 the
Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE
ACT OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR
ITS ASSIGNEE(S) AS SET FORTH IN THE EXERCISE NOTICE 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 TRANSFER RESTRICTIONS AND RIGHT OF
FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER FOR A PERIOD OF TIME FOLLOWING THE EFFECTIVE DATE OF THE
UNDERWRITTEN PUBLIC OFFERING OF THE COMPANY’S SECURITIES SET FORTH IN AN
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES AND MAY
NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER PRIOR TO THE EXPIRATION
OF SUCH PERIOD WITHOUT THE CONSENT OF THE COMPANY OR THE MANAGING
UNDERWRITER.
(b) Stop-Transfer Notices. Optionee 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
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provisions of this Exercise Notice 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.
8. Successors and Assigns. The Company may assign any of its rights under this Exercise
Notice to single or multiple assignees, and this Exercise Notice shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
this Exercise Notice shall be binding upon Optionee and his or her heirs, executors,
administrators, successors and assigns.
9. Interpretation. Any dispute regarding the interpretation of this Exercise Notice shall be
submitted by Optionee or by the Company forthwith to the Administrator, which shall review such
dispute at its next regular meeting. The resolution of such a dispute by the Administrator shall
be final and binding on all parties.
10. Governing Law; Severability. This Exercise Notice is governed by the internal substantive
laws, but not the choice of law rules, of California. In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void,
this Exercise Notice shall continue in full force and effect.
11. Entire Agreement. The Plan and Option Agreement are incorporated herein by reference.
This Exercise Notice, the Plan, the Restricted Stock Purchase Agreement, the Option Agreement and
the Investment Representation Statement constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede in their entirety all prior undertakings and agreements
of the Company and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee’s interest except by means of a writing signed by the Company and
Optionee.
[Remainder of Page Left Blank]
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Submitted by:
|
Accepted by : | |
OPTIONEE
|
MINT SOFTWARE INC. | |
| President and Chief Executive Officer
|
||
| Title | ||
Address:
|
Address: | |
| 000 Xxxx Xxxxxx | ||
| Xxxxxxxx Xxxx, XX 00000 | ||
| Date Received |
[Signature Page to 2006 Stock Plan Exercise Notice]
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE
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: | |||
COMPANY
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: | Mint Software Inc. | ||
SECURITY
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: | COMMON STOCK | ||
AMOUNT
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: | shares | ||
DATE
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: | |||
In connection with the purchase of the above-listed Securities, the undersigned Optionee represents
to the Company the following:
1. Optionee is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and knowledgeable decision
to acquire the Securities. Optionee is acquiring these Securities for investment for Optionee’s
own account only and not with a view to, or for resale in connection with any “distribution”
thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
2. Optionee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the Securities Act in
reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the
bona fide nature of Optionee’s investment intent as expressed herein. In this connection, Optionee
understands that, in the view of the Securities and Exchange Commission, the statutory basis for
such exemption may be unavailable if Optionee’s representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the market price of the
Securities, or for a period of one year or any other fixed period in the future. Optionee further
understands that the Securities must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available. Optionee further
acknowledges and understands that the Company is under no obligation to register the Securities.
Optionee understands that the certificate evidencing the Securities shall be imprinted with any
legend required under applicable state securities laws.
3. Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under
the Securities Act, which, in substance, permit limited public resale of “restricted securities”
acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701
at the time of the grant of the Option to the Optionee, the exercise shall be exempt from
registration under the Securities Act. In the event the Company becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days
thereafter (or such longer period as any market stand-off agreement may
require) the Securities exempt under Rule 701 may be resold, subject to the satisfaction of
certain of the conditions specified by Rule 144, including: (1) the resale being made through a
broker in an unsolicited “broker’s transaction” or in transactions directly with a market maker (as
said term is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate,
(2) the availability of certain public information about the Company, (3) the amount of Securities
being sold during any three (3) month period not exceeding the limitations specified in Rule
144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time of grant of the
Option, then the Securities may be resold in certain limited circumstances subject to the
provisions of Rule 144, which requires the resale to occur not less than one (1) year after the
later of the date the Securities were sold by the Company or the date the Securities were sold by
an affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than
two (2) years, the satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of
the paragraph immediately above.
4. Optionee further understands that in the event all of the applicable requirements of Rule
701 or 144 are not satisfied, registration under the Securities Act, compliance with Regulation A,
or some other registration exemption shall be required; and that, notwithstanding the fact that
Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has
expressed its opinion that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rules 144 or 701 shall have a substantial burden
of proof in establishing that an exemption from registration is available for such offers or sales,
and that such persons and their respective brokers who participate in such transactions do so at
their own risk. Optionee understands that no assurances can be given that any such other
registration exemption shall be available in such event.
| OPTIONEE |
||||
| Signature | ||||
| Print Name | ||||
| Date | ||||
EXHIBIT C-1
MINT SOFTWARE INC.
2006 STOCK PLAN
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is made between
(the “Purchaser”) and Mint Software Inc. (the “Company”) or its assignees of rights hereunder as of
.
Unless otherwise defined herein, the terms defined in the 2006 Stock Plan shall have the same
defined meanings in this Agreement.
RECITALS
A. Pursuant to the exercise of the option granted to Purchaser under the Plan and pursuant to
the Stock Option Agreement (the “Option Agreement”) dated , by and
between the Company and Purchaser with respect to such grant (the “Option”), which Plan and Option
Agreement are hereby incorporated by reference, Purchaser has elected to purchase of
those shares of Common Stock which have not become vested under the vesting schedule set forth in
the Option Agreement (“Unvested Shares”). The Unvested Shares and the shares subject to the Option
Agreement, which have become vested are sometimes collectively referred to herein as the “Shares.”
B. As required by the Option Agreement, as a condition to Purchaser’s election to exercise the
option, Purchaser must execute this Agreement, which sets forth the rights and obligations of the
parties with respect to Shares acquired upon exercise of the Option.
A. Repurchase Option.
1. If Purchaser’s status as a Service Provider is terminated for any reason, including for
death and Disability, the Company shall have the right and option for ninety (90) days from such
date to purchase from Purchaser, or Purchaser’s personal representative, as the case may be, all of
the Purchaser’s Unvested Shares as of the date of such termination at the price paid by the
Purchaser for such Shares (the “Repurchase Option”).
2. Upon the occurrence of such termination, the Company may exercise its Repurchase Option by
delivering personally or by registered mail, to Purchaser (or his transferee or legal
representative, as the case may be) with a copy to the escrow agent described in Section 2 below, a
notice in writing indicating the Company’s intention to exercise the Repurchase Option AND, at the
Company’s option, (i) by delivering to the Purchaser.(or the Purchaser’s transferee or legal
representative) a check in the amount of the aggregate repurchase price, or (ii) by the Company
canceling an amount of the Purchaser’s indebtedness to the Company equal to the aggregate
repurchase price, or (iii) by a combination of (i) and (ii) so that the combined payment and
cancellation of indebtedness equals such aggregate repurchase price. Upon delivery of such notice
and payment of the aggregate repurchase price in any of the ways
described above, the Company shall become the legal and beneficial owner of the Unvested
Shares being repurchased and the 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 Unvested Shares being
repurchased by the Company.
3. Whenever the Company shall have the right to repurchase Unvested 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 and purchase all or a part of such Unvested Shares.
4. If the Company does not elect to exercise the Repurchase Option conferred above by giving
the requisite notice within ninety (90) days following the termination, the Repurchase Option shall
terminate.
5. The Repurchase Option shall terminate in accordance with the vesting schedule contained in
Purchaser’s Option Agreement.
B. Transferability of the Shares; Escrow.
1. Purchaser hereby authorizes and directs the Secretary of the Company, or such other person
designated by the Company, to transfer the Unvested Shares as to which the Repurchase Option has
been exercised from Purchaser to the Company.
2. To insure the availability for delivery of Purchaser’s Unvested Shares upon repurchase by
the Company pursuant to the Repurchase Option under Section 1, Purchaser hereby appoints the
Secretary, or any other person designated by the Company as escrow agent (the “Escrow Agent”), as
its attorney-in-fact to sell, assign and transfer unto the Company, such Unvested Shares, if any,
repurchased by the Company pursuant to the Repurchase Option and shall, upon execution of this
Agreement, deliver and deposit with the Escrow Agent, the share certificates representing the
Unvested Shares, together with the stock assignment duly endorsed in blank, attached hereto as
Exhibit C-2. The Unvested Shares and stock assignment shall be held by the Escrow Agent in
escrow, pursuant to the Joint Escrow instructions of the Company and Purchaser attached as
Exhibit C-3, hereto, until the Company exercises its Repurchase Option, until such Unvested
Shares are vested, or until such time as this Agreement no longer is in effect. Upon vesting of
the Unvested Shares, the Escrow Agent shall promptly deliver to the Purchaser the certificate or
certificates representing such Shares in the Escrow Agent’s possession belonging to the Purchaser,
and the Escrow Agent shall be discharged of all further obligations hereunder; provided, however,
that the Escrow Agent shall nevertheless retain such certificate or certificates as Escrow Agent if
so required pursuant to other restrictions imposed pursuant to this Agreement.
3. Neither the Company nor the Escrow Agent shall be liable for any act it may do or omit to
do with respect to holding the Shares in escrow and while acting in good faith and in the exercise
of its judgment.
4. Transfer or sale of the, Shares is subject to restrictions on transfer imposed by any
applicable state and federal securities laws. Any transferee shall hold such Shares subject
2
to all the provisions hereof and the Exercise Notice executed by the Purchaser with respect to
any Unvested Shares purchased by Purchaser and shall acknowledge the same by signing a copy of this
Agreement.
C. Ownership, Voting Rights, Duties. This Agreement shall not affect in any way the
ownership, voting rights or other rights or duties of Purchaser, except as specifically provided
herein.
D. Legends. The share certificate evidencing the Shares issued hereunder shall be
endorsed with the following legend (in addition to any legend required under applicable federal and
state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS UPON
TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY
AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
E. Adjustment for Stock Split. All references to the number of Shares and the
purchase price of the Shares in this Agreement shall be appropriately adjusted to reflect any stock
split, stock dividend or other change in the Shares, which may be made by the Company pursuant to
Section 13 of the Plan after the date of this Agreement.
F. Notices. Notices required hereunder shall be given in person or by registered mail
to the address of Purchaser shown on the records of the Company, and to the Company at their
respective principal executive offices.
G. Survival of Terms. This Agreement shall apply to and bind Purchaser and the
Company and their respective permitted assignees and transferees, heirs, legatees, executors,
administrators and legal successors.
H. Section 83(b) Election. Purchaser hereby acknowledges that he or she has been
informed that, with respect to the exercise of an Option for Unvested Shares, an election (the
“Election”) may be filed by the Purchaser with the Internal Revenue Service, within thirty (30)
days of the purchase of the exercised Shares, electing pursuant to Section 83(b) of the Code to be
taxed currently on any difference between the purchase price of the exercised Shares and their Fair
Market Value on the date of purchase. In the case of a Nonstatutory Stock Option, this will result
in the recognition of taxable income to the Purchaser on the date of exercise, measured by the
excess, if any, of the Fair Market Value of the exercised Shares, at the time the Option is
exercised over the purchase price for the exercised Shares. Absent such an Election, taxable
income will be measured and recognized by Purchaser at the time or times on which the Company’s
Repurchase Option lapses. In the case of an Incentive Stock Option, such an Election will result
in a recognition of income to the Purchaser for alternative minimum tax purposes on the date of
exercise, measured by the excess, if any, of the Fair Market Value of the exercised Shares, at the
time the option is exercised, over the purchase price for the exercised Shares. Absent such an
Election, alternative minimum taxable income will be measured and recognized by Purchaser at the
time or times on which the Company’s Repurchase Option lapses.
3
This discussion is intended only as a summary of the general United States income tax laws
that apply to exercising Options as to Shares that have not yet vested and is accurate only as of
the date this form Agreement was approved by the Board. The federal, state and local tax
consequences to any particular taxpayer will depend upon his or her individual circumstances.
Purchaser is strongly encouraged to seek the advice of his or her own tax consultants in connection
with the purchase of the Shares and the advisability of filing of the Election under Section 83(b)
of the Code. A form of Election under Section 83(b) is attached hereto as Exhibit C-4 for
reference.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF PURCHASER REQUESTS THE COMPANY OR
ITS REPRESENTATIVE TO MAKE THIS FILING ON PURCHASER’S BEHALF.
I. Representations. Purchaser has reviewed with his own tax advisors the federal,
state, local and foreign tax consequences of this investment and the transactions contemplated by
this Agreement. Purchaser is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. Purchaser understands that he (and not the
Company) shall be responsible for his own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
J. Entire Agreement; Governing Law. The Plan and Option Agreement are incorporated
herein by reference. The Plan, the Option Agreement, the Exercise Notice, this Agreement, and the
Investment Representation Statement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings and agreements of
the Company and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee’s interest except by means of a writing signed by the Company and
Optionee. This Agreement is governed by the internal substantive laws but not the choice of law
rules of California.
Purchaser represents that he has read this Agreement and is familiar with its terms and
provisions: Purchaser hereby agrees to accept as binding, conclusive and final all decisions or
interpretations of the Board upon any questions arising under this Agreement.
[Remainder of Page Left Blank]
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IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set forth above.
OPTIONEE
|
MINT SOFTWARE INC. | |
Signature
|
By: | |
Print Name
|
Print Name | |
| President and Chief Executive Officer | ||
| Title | ||
Dated: |
[Signature Page to Restricted Stock Purchase Agreement]
EXHIBIT C-2
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, ____________________, hereby sell, assign and transfer unto Mint
Software Inc.
_______________ (__________) shares of the Common Stock of Mint Software Inc. standing in my name of
the books of said corporation represented by Certificate No. _______ herewith and do hereby
irrevocably constitute and appoint __________ to transfer the said stock on the books of the within
named corporation with full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted Stock Purchase
Agreement between Mint Software Inc. and the undersigned dated _______________ (the “Agreement”).
Dated:
|
Signature: | |||||||||
INSTRUCTIONS: Please do not fill in any blanks other than the signature line. The purpose of this
assignment is to enable the Company to exercise its “repurchase option,” as set forth in the
Agreement, without requiring additional signatures on the part of the Purchaser.
EXHIBIT C-3
JOINT ESCROW INSTRUCTIONS
, 200_
Mint Software Inc.
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Corporate Secretary
Dear Xx. Xxxxxxxx:
As Escrow Agent for both Mint Software Inc. (the “Company”), and the undersigned purchaser of
stock of the Company (the “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”) between the Company and the undersigned, in accordance with the
following instructions:
1. In the event the Company and/or any assignee of the Company (referred to collectively for
convenience herein as the “Company”) exercises the Company’s 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 (a) to date the stock assignments necessary for the
transfer in question, (b) to fill in the number of shares being transferred, and (c) to deliver the
stock assignments, together with the certificate evidencing the shares of stock to be transferred,
to the Company or its assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock being purchased
pursuant to the exercise of the Company’s 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 Purchaser’s 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, including but not limited to the filing with any
applicable state blue sky authority of any required applications for consent to, or notice of
transfer of, the securities. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a stockholder of the Company while the stock is held by you.
4. Upon written request of the Purchaser, but no more than once per calendar year, unless the
Company’s repurchase option has been exercised, you shall deliver to Purchaser a certificate or
certificates representing so many shares of stock as are not then subject to the
Company’s repurchase option. Within one hundred and twenty (120) days after cessation of
Purchaser’s continuous employment by or services to the Company, or any parent or subsidiary of the
Company, you shall deliver to Purchaser a certificate or certificates representing the aggregate
number of shares held or issued pursuant to the Agreement and not purchased by the Company or its
assignees pursuant to exercise of the Company’s 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, you shall deliver all of the 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 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 corporation, 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 corporation 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 outlawing 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 cease to be
an officer or agent of the Company or 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.
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.
2
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 upon 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 ten days’ advance written notice to each of the other parties hereto.
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.
17. This instrument shall be binding upon and inure to the benefit of the parties hereto, and
their respective successors and permitted assigns.
18. These Joint Escrow Instructions shall be governed by the internal substantive laws, but
not the choice of law rules, of California.
[Remainder of Page Left Blank]
3
PURCHASER
|
MINT SOFTWARE INC. | |
| President and Chief Executive Officer
|
||
ESCROW AGENT |
||
Dated:
[Signature Page to Joint Escrow Instructions]
4
EXHIBIT C-4
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Sections 55 and 83(b) of the Internal Revenue
Code of 1986, as amended, to include in taxpayer’s gross income or alternative minimum taxable
income, as the case may be, for the current taxable year the amount of any compensation taxable to
taxpayer in connection with taxpayer’s receipt of the property described below.
| 1. | The name, address, taxpayer identification number and taxable year of the undersigned are as follows: |
NAME:
|
TAXPAYER: | SPOUSE: | ||
ADDRESS: |
||||
IDENTIFICATION NO:
|
TAXPAYER: | SPOUSE: | ||
TAXABLE YEAR: |
| 2. | The property with respect to which the election is made is described as follows: shares (the “Shares”) of the Common Stock of Mint Software Inc. (the “Company”). | |
| 3. | The date on which the property was transferred is: , ______. | |
| 4. | The property is subject to the following restrictions: | |
| The Shares may not be transferred and are subject to forfeiture under the terms of an agreement between the taxpayer and the Company. These restrictions lapse upon the satisfaction of certain conditions contained in such agreement. | ||
| 5. | The fair market value at the time of transfer, determined without regard to any restriction other a restriction which by its terms shall never lapse, of such property is: $ . | |
| 6. | The amount (if any) paid for such property is: $ . |
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 except with the
consent of the Commissioner.
Dated: |
The undersigned spouse of taxpayer joins in this election.
Dated: |
