RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement ("Agreement") is entered into as
of ______________, 199__ between Serena Software International, a California
corporation (the "Company"), and __________________ ("Purchaser").
RECITALS
Pursuant to the Company's 1997 Stock Option and Incentive Plan (the
"Plan"), the committee established pursuant to the Plan (the "Committee") has
determined to issue and sell to Purchaser, and Purchaser has agreed to purchase
from the Company, shares of the Company's Common Stock (the "Shares") on the
terms and conditions set forth below. The Plan is available for review by
Purchaser at the Company's principal office.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein, the parties hereby agree as follows:
1. PURCHASE OF SHARES
The Company hereby agrees to sell to Purchaser, and Purchaser hereby agrees
to purchase from the Company, ___________ Shares at a price of $__________ per
Share (the "Initial Per Share Price"), for an aggregate purchase price of
$_______.
In payment of the purchase price for the Shares, Purchaser will execute and
deliver to the Company a recourse Promissory Note, in substantially the form of
Exhibit A attached hereto, in the principal amount of $_______ (the "Purchase
Note"). As security for its obligations under the Purchase Note, Purchaser will
execute and deliver to the Company a Pledge Agreement in substantially the form
of Exhibit B attached hereto (the "Pledge Agreement"). The Shares will be issued
to Purchaser upon receipt by the Company of the Purchase Note and the Pledge
Agreement, duly executed by Purchaser.
The Shares will be represented by certificate no. _________, issued in the
name of Purchaser and delivered to the Secretary of the Company pursuant to the
Pledge Agreement.
2. VESTING
The Shares are subject to a right and obligation of repurchase by the
Company at the Initial Per Share Price, which repurchase right for the Company
(and forfeiture risk for Purchaser) lapses over time as set forth below. As the
repurchase right lapses, the number of Shares which are then free of the
repurchase right are referred to herein as "Vested Shares." Thus, as used
herein, "Unvested Shares" means all Shares in which Purchaser has not acquired
such a vested interest (free of the right to repurchase at the Initial Per Share
Price) in accordance with the following provisions; and "Vested Shares" means
all Shares in which Purchaser has acquired such a vested interest.
One-fourth (25%) of the Shares (_______ Shares) shall become Vested Shares
at midnight on the last day of _________, 199__ (the "Initial Vesting Date") if
Purchaser is then employed by the Company; and the remaining three-fourths (75%)
of the Shares (______ Shares) shall become Vested Shares in thirty-six (36)
equal monthly installments, each occurring at midnight on
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the last day of each month commencing after the Initial Vesting Date if
Purchaser is then employed by the Company, so that, assuming continued
employment, all Shares will become Vested Shares at midnight on
_______________________ (the "Vesting Termination Date"). Notwithstanding the
foregoing, any Unvested Shares shall become Vested Shares immediately prior to
the occurrence of any of the following events: (i) the sale of all or
substantially all the assets of the Company; (ii) the occurrence of any one
transaction or any series of related transactions which results in the transfer
to any third party (or any affiliated group of third parties) of securities
representing more than 50% of the voting power of the Company; (iii) the merger
or other consolidation of the Company with any third party in which the Company
is not the surviving entity; or (iv) any dissolution, liquidation or other
termination of the Company.
Vested and Unvested Shares shall also include any additional Distributed
Securities, as set forth in Section 3.6.
If application of the vesting percentages results in a vested fractional
Share or a vested fractional Distributed Security, the entire Share or
Distributed Security of which the fraction is a part shall be deemed to be a
Vested Share or Vested Distributed Security.
As used in this Section and Section 3 below, Purchaser shall be considered
to be "employed" only so long as Purchaser qualifies as an employee for tax
purposes. If Purchaser's status with the Company should change from that of an
employee (whether full- or part-time) to that of an independent contractor, then
Purchaser shall not be considered to be "employed" for purposes of this Section
and Section 3 from and after the date of that change.
3. REPURCHASE AND FIRST REFUSAL RIGHTS
3.1. REPURCHASE OBLIGATION - UNVESTED SHARES
Upon the termination of Purchaser's employment by the Company, the Company
shall have the right and obligation (the "Repurchase Obligation") to purchase
and redeem from Purchaser or Purchaser's personal representative, as the case
may be, all of the Shares (including Distributed Securities) which, at the date
of such termination, were Unvested Shares.
The purchase price (the "Redemption Price") for each of the Unvested Shares
to be redeemed under the Repurchase Obligation shall be the Initial Per Share
Price for each Unvested Share (exclusive of any Unvested Distributed
Securities); provided that, upon the redemption of the Unvested Shares, any
Unvested Distributed Securities will then also be redeemed without the payment
of any additional consideration therefor. The Company will effect the redemption
of any Unvested Shares by delivering to Purchaser (or Purchaser's legal
representative), at the Company's option, either cash in the amount of the
Redemption Price or written notice of the forgiveness of a portion of the
principal balance of the Purchase Note equal to the Redemption Price, or a
combination thereof.
3.2. REPURCHASE OPTION - VESTED SHARES
Purchaser hereby grants the Company the right and option (the "Repurchase
Option"), exercisable (as set forth below) at any time during the 90-day period
following the date that Purchaser's employment by the Company is terminated, to
purchase and redeem from Purchaser or Purchaser's personal representative, as
the case may be, all or (at the discretion of the
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Company) any number of the Shares (including Distributed Securities) which, at
the date of such termination, were Vested Shares.
The Repurchase Option will be exercisable by written notice delivered to
Purchaser or Purchaser's personal representative, as the case may be, indicating
the number of Vested Shares to be purchased and redeemed.
The Redemption Price for any Vested Shares and/or any Vested Distributed
Securities to be redeemed under the Repurchase Option shall be the Fair Market
Value (as defined in the Plan) for such Shares and/or Distributed Securities as
of the date of termination of Purchaser's employment. The Company will effect
the redemption of any Vested Shares and/or Vested Distributed Securities by
delivering to Purchaser (or Purchaser's legal representative) cash (and/or
cancellation of indebtedness) in the amount of the Redemption Price.
3.3. RESTRICTIONS ON TRANSFER; RIGHT OF FIRST REFUSAL
Purchaser will have no right, and agrees to take no action, to sell or
otherwise transfer any Unvested Shares or Unvested Distributed Securities, and
any attempted transfer of Unvested Shares or Unvested Distributed Securities,
whether voluntarily, involuntarily, by operation of law or otherwise, shall
constitute a breach of this Agreement by Purchaser and shall be void and of no
force or effect. In addition, any Unvested Shares or Unvested Distributed
Securities as to which any third party asserts ownership by way of transfer from
Purchaser shall, in the hands of such third party (as successor to Purchaser),
be subject to the Repurchase Obligation, so that the Company shall have the
right and obligation to purchase and redeem all of such Unvested Shares and/or
Unvested Distributed Securities on the same terms as are set forth in Section
3.1 with respect to Shares and/or Distributed Securities which were Unvested
Shares or Unvested Distributed Securities on the date that Purchaser's
employment by the Company is terminated.
In addition to the Repurchase Obligation and the Repurchase Option,
Purchaser hereby agrees that, if he shall make an offer to sell any Shares, or
shall receive an offer to purchase any such Shares which he intends to accept,
he shall give the Company notice of the intended sale (including the name of and
other reasonably descriptive information about the prospective purchaser and the
proposed price, terms and conditions of the proposed sale, including copies of
any documents relating thereto) at least 60 days prior to the proposed closing
of the sale. Upon receipt of the notice, the Company shall have a right of first
refusal (the "First Refusal Right"), exercisable by notice delivered to
Purchaser at any time during the 30-day period following receipt of such notice
from Purchaser, to purchase and redeem the Shares subject to the proposed sale
at the price (the "RFR Price") and on the terms and conditions of the proposed
sale. If the Company shall fail to exercise the First Refusal Right, Purchaser
will be free for a period of 90 days thereafter to sell any Vested Shares and/or
Vested Distributed Securities described in the notice to the person identified
in the notice (but to no other person), without further compliance with the
First Refusal Right hereunder, at the RFR Price and on the terms and conditions
set forth in the notice or at such other price or on such other terms and
conditions no more favorable to the proposed purchaser than those set forth in
the notice; provided that Purchaser may not effect any sale after such 90-day
period to any person on any terms without again complying with the First Refusal
Right provisions. Any purported sale of Shares covered by this subsection that
is effected without compliance with the Company's First Refusal Right will be
void and ineffective.
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Notwithstanding the foregoing, Purchaser shall have the right to transfer,
by gift, free of the Company's First Refusal Right and the other restrictions of
this Section 3.3, all or any portion of the Shares (i) directly or indirectly
(through trust or otherwise) to, or for the benefit of, Purchaser's spouse or
children, or (ii) to Purchaser's heirs, executors, personal representatives or
other assigns as a result of Purchaser's death or incapacity; provided that a
condition to any such transfer shall be that, prior to becoming the record owner
of the transferred Shares, the transferee shall become a party to this Agreement
(and the transferee's spouse, if any, shall execute a Spousal Consent in the
form attached hereto as Exhibit D), so that the Shares in the hands of the such
transferee shall remain subject to the Repurchase Obligation and the Repurchase
Option and, with respect to any subsequent transfer, the First Refusal Right,.
3.4. CLOSING
The closing of the redemption of Shares pursuant to the Repurchase
Obligation, the Repurchase Option or the First Refusal Right (the "Closing")
will be held at the offices of the Company or such other place mutually agreed
upon by the parties, at a date mutually acceptable to the parties. In no event,
however, will the Closing be set later than thirty (30) days following (i) the
date of termination of employment (with respect to the Repurchase Obligation) or
(ii) the exercise of the Option or First Refusal Right, unless the parties
mutually agree to a later date for the Closing.
In consideration for payment of the Redemption Price or the RFR Price, as
applicable, Purchaser or Purchaser's personal representative, as the case may
be, shall deliver, or cause to be delivered, to the Company (or its assignees)
the stock certificates evidencing the Shares being redeemed, together with a
duly executed assignment separate from certificate and such other documents as
are necessary to close the transaction. If such certificate(s) evidence both
Shares being redeemed and Shares not being redeemed, the Company shall, at the
Closing, issue and deliver a new certificate to Purchaser or his personal
representative to evidence the Shares not being redeemed. Purchaser irrevocably
appoints the Company as his attorney-in-fact, authorized at any time during the
term of this Agreement to take any actions on behalf of Purchaser with respect
to the purchase and redemption of Shares in compliance with the foregoing terms.
3.5. TERMINATION UPON IPO OR MERGER
The First Refusal Right and the Repurchase Option shall terminate upon the
closing of (i) an underwritten public offering of the Company's Common Stock
made pursuant to an effective registration statement under the federal
Securities Act of 1933 (the "1933 Act"), other than a registration relating
solely to either a transaction under Rule 145 of the Securities and Exchange
Commission or an employee benefit plan, or (ii) any merger or other transaction
by which the Shares are exchanged for or converted into securities which are
part of a class of securities which are listed for trading on an established
securities exchange or otherwise participate in an active public securities
market.
3.6. ADJUSTMENTS FOR CAPITAL CHANGES
In the event the Company undertakes, without receipt of consideration, any
stock dividend, stock split, recapitalization or other change affecting as a
class the Company's outstanding stock of the same class as the Shares, then (i)
any new, substituted or additional securities or other property which are, by
reason of any such transaction, distributed with respect
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to the Shares (collectively, "Distributed Securities") shall be subject to the
Repurchase Obligation, the Repurchase Option and the First Refusal Right, with
any such Distributed Securities distributed with respect to Shares that are then
Vested Shares being treated, for purposes of this Agreement, the same as Vested
Shares, and any such Distributed Securities distributed with respect to Shares
that are then Unvested Shares being treated, for purposes of this Agreement, the
same as Unvested Shares, and (ii) Purchaser's ownership of such Distributed
Securities which are to be treated the same as Unvested Shares will vest in
accordance with the terms and conditions set forth in Section 2 at such rate as
to permit full vesting by the Vesting Termination Date. All certificates
representing any Distributed Securities shall be delivered to the Secretary of
the Company to be held in accordance with the provisions of the Pledge
Agreement. Distributed Securities which, under the foregoing provisions, are
unvested or vested are sometimes referred to herein, respectively, as "Unvested
Distributed Securities" and "Vested Distributed Securities"; and, when indicated
by context, the terms "Shares," "Unvested Shares" and "Vested Shares" as used
herein will include Distributed Securities as well as Shares.
3.7. CANCELLATION OF SHARES
If the Company (or its assignees) shall make available, at the time and
place and in the amount and form provided in this Agreement, the consideration
for the Shares to be redeemed in accordance with the provisions of this Section
3, then from and after such time, Purchaser shall no longer have any rights as a
holder of such Shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such Shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company (or its assignees) shall be deemed the owner and holder of such shares,
whether or not the certificates therefor have been delivered as required by this
Agreement.
4. SECURITIES LAW COMPLIANCE
4.1. INVESTMENT REPRESENTATIONS
Purchaser hereby represents and warrants that:
(a) He is aware of and familiar with the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach a knowledgeable and informed decision to acquire the Shares;
(b) He and his representatives, if any, have such knowledge and experience
in financial and business matters as may be necessary for him to evaluate the
merits and risks of investment in the Shares;
(c) He and his representatives, if any, have received all information and
data with respect to the Company which he or his representatives have requested
and deemed relevant in connection with the merits and risks of the investment in
the Shares;
(d) He understands that an investment in the Shares is speculative and
that any possible profits therefrom are uncertain;
(e) He is able to bear the economic risks of the investment in the Shares
for an indefinite period of time; and
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(f) He is acquiring the Shares for his own account and not with a view to
their resale or distribution.
4.2. EXEMPTION FROM REGISTRATION
Purchaser acknowledges that the Shares have not been registered under the
1933 Act or qualified under any applicable state securities laws and are being
issued to Purchaser in reliance upon the exemption from such registration and
qualification provided by Rule 701 of the Securities and Exchange Commission for
stock issuances under compensatory benefit contracts such as this Agreement and
corresponding exemptions under applicable state securities laws.
4.3. RESTRICTED SECURITIES
Purchaser hereby confirms that he has been informed that the Shares
constitute restricted securities under the 1933 Act and may not be resold or
transferred unless the Shares are first registered under the Federal securities
laws and qualified under applicable state securities laws or unless an exemption
from such registration and qualification is available. Accordingly, Purchaser
hereby acknowledges that he is prepared to hold the Shares for an indefinite
period and that he is aware that Rule 144 of the Securities and Exchange
Commission issued under the 1933 Act is not presently available to exempt the
sale of the Shares from the registration requirements of the 1933 Act.
4.4. DISPOSITION OF SHARES
Purchaser hereby agrees to make no disposition of the Shares unless and
until he (i) has notified the Company of the proposed disposition and provided a
written summary of the terms and conditions of the proposed disposition; (ii)
has complied with all requirements of this Agreement applicable to the
disposition of the Shares; and (iii) has provided the Company with an opinion of
counsel, in form and substance satisfactory to the Company, that (A) the
proposed disposition does not require registration of the Shares under the 1933
Act or qualification under applicable state securities laws, or (B) all
appropriate action necessary for compliance with such registration and/or
qualification requirements, or for exemption from such requirements, has been
taken.
4.5. RESTRICTIVE LEGENDS
In order to reflect the restrictions on disposition of the Shares, the
stock certificates for the Shares (including Distributed Securities) will be
endorsed with restrictive legends substantially in the form of the following:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
REPURCHASE RIGHTS HELD BY THE COMPANY OR ITS
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ASSIGNEE(S), AS SET FORTH IN A RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN
THE COMPANY AND THE ORIGINAL HOLDER OF THESE SHARES, ALL OF WHICH RIGHTS
AND RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES. A COPY OF THE
RESTRICTED STOCK PURCHASE AGREEMENT MAY BE OBTAINED AT THE PRINCIPAL OFFICE
OF THE COMPANY."
4.6. LOCK-UP AGREEMENT
If, in connection with an underwritten public offering of the Company's
Common Stock made pursuant to an effective registration statement under the 1933
Act, the underwriter requires the Company's officers and directors to refrain
from selling any of the Company's Common Stock for a designated period of time
following the closing of the offering pursuant to reasonably standard "lock-up"
provisions, Purchaser will agree to abide by the same lock-up provisions unless
exempted therefrom by the underwriter at its discretion.
5. SECTION 83(B) ELECTION
Purchaser understands that under Section 83 of the Internal Revenue Code
of 1986, as amended (the "Code"), the excess of the fair market value of the
Shares on the date any forfeiture restrictions applicable to such shares
lapse over the purchase price paid for such shares will be reportable as
ordinary income at that time. For this purpose, the term "forfeiture
restrictions" includes the right and obligation of the Company to redeem the
Shares pursuant to the Repurchase Obligation provided under Section 3.1 of
this Agreement. Purchaser understands, however, that Purchaser may elect to
be taxed at the time the Shares are acquired hereunder, rather than when and
as such Shares cease to be subject to such forfeiture restrictions, by filing
an election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days after the date of this Agreement. Even if the fair
market value of the Shares at the date of this Agreement equals the purchase
price paid (and thus no tax is payable), the election must be made to avoid
adverse tax consequences in the future. The form for making this election is
attached as Exhibit C hereto. Purchaser understands that failure to make this
filing within the 30-day period may result in the recognition of ordinary
income by Purchaser as the forfeiture restrictions lapse. Purchaser
acknowledges that he will reach his own determination with respect to all tax
aspects of purchasing the Shares under the terms of this Agreement; that he
has been advised by the Company to seek advice on the matter from his own tax
advisors; and that he is not relying on the statements made above or any
other information provided by the Company in deciding whether or not to file
the election permitted under Section 83(b). PURCHASER ALSO ACKNOWLEDGES THAT
IT IS PURCHASER'S SOLE RESPONSIBILITY, AND NOT THE COMPANY'S. TO FILE A
TIMELY ELECTION UNDER SECTION 83(b), EVEN IF PURCHASER REQUESTS THE COMPANY
OR ITS REPRESENTATIVES TO MAKE THIS FILING ON PURCHASER'S BEHALF.
6. GENERAL PROVISIONS
6.1. ASSIGNMENT
If the Company does not wish or is not legally permitted to exercise the
Repurchase Obligation, the Repurchase Option or the First Refusal Right, it may
assign the right or obligation
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to any person or entity selected by the Company's Board of Directors, including,
without limitation, one or more shareholders of the Company.
6.2. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes any and all prior agreements
between the parties relating to such subject matter.
6.3. MODIFICATIONS
This Agreement may be changed or modified only by an agreement in writing
signed by both parties hereto.
6.4. SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall inure to the benefit of, and be
binding upon, the Company and its successors and assigns and Purchaser and his
legal representatives, heirs, legatees, distributees, assigns and transferees by
operation of law, whether or not any such person shall have become a party to
this Agreement and shall have agreed in writing to join and be bound by the
terms and conditions hereof.
6.5. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California as such laws are applied to agreements among
California residents entered into and performed entirely within California.
6.6. SEVERABILITY
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall nevertheless continue in full force and effect.
6.7. FURTHER ASSURANCES
The parties will execute such further instruments and take such further
action as may be reasonably necessary to carry out the intent of this Agreement.
6.8. NOTICES
Any notices or other communications required or permitted hereunder shall
be in writing and shall be deemed received by the recipient when delivered
personally or, if mailed, five (5) days after the date of deposit in the United
States mail, certified or registered, postage prepaid and addressed, in the case
of the Company, to 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx
00000-0000, and in the case of Purchaser, to the address shown for Purchaser on
the signature page hereof, or to such other address as either party may later
specify by at least ten (10) days advance written notice delivered to the other
party in accordance herewith.
6.9. CAPTIONS
Section headings used in this Agreement are for convenience of reference
only and shall not be considered a part of this Agreement.
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6.10. NO WAIVER
The failure of any party to enforce any provision of this Agreement shall
not be construed as a waiver of that provision, nor prevent that party
thereafter from enforcing that provision or any other provision of this
Agreement.
6.11. INJUNCTIVE RELIEF
Purchaser acknowledges that damages would be an inadequate remedy for
breach of this Agreement and that the obligations of Purchaser hereunder may be
enforced by the remedies of specific enforcement and injunctive relief.
6.12. ENFORCEMENT
If any action at law or in equity or any arbitration is brought to enforce
or interpret the terms of this Agreement or to protect the rights obtained
hereunder, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, costs and other expenses in addition to any other relief to
which it may be entitled.
6.13. SPOUSAL CONSENT
Purchaser, if married, shall cause his spouse to execute a spousal consent
to the provisions of this Agreement in substantially the form of Exhibit D
hereto.
6.14. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
6.15. NO EMPLOYMENT OR SERVICE CONTRACT
Nothing in this Agreement shall confer upon Purchaser any right to continue
in the service of the Company for any period of specific duration or interfere
with or otherwise restrict in any way the rights of the Company or Purchaser to
terminate the employment of Purchaser at any time, with or without cause.
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IN WITNESS WHEREOF, the Company and Purchaser have executed this Agreement,
effective as of the day and year first above written.
COMPANY: PURCHASER:
Serena Software International,
a California corporation -------------------------
(Signature)
By: Address:
-----------------------------
Xxxxxxx X. Xxxxx, President
-------------------------
-------------------------
-------------------------
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EXHIBIT A
PROMISSORY NOTE
(PURCHASE NOTE)
$_____________________ __________, 19__
FOR VALUE RECEIVED, ___________________________ (the "Maker") promises to
pay to the order of Serena Software International, a California corporation (the
"Holder"), at the address set forth for the Holder on the signature page hereof,
or such other place as the Holder may from time to time designate, in lawful
money of the United States, the principal sum of _________________________
dollars ($_______________) plus interest thereon, as set forth below.
This Note is delivered in consideration for the purchase by the Maker of
certain shares (the "Shares") of the Common Stock of the Holder (the "Common
Stock") pursuant to a Restricted Stock Purchase Agreement between the Maker and
the Holder (the "Restricted Stock Purchase Agreement").
1. INTEREST
Interest on the principal balance of this Note outstanding from time to
time shall accrue at a simple annual rate equal to the lesser of ____% [INSERT
APPLICABLE FEDERAL RATE] or the highest nonusurious rate then permitted by
applicable law.
2. PAYMENT AT MATURITY
This Note shall mature, and the entire outstanding principal balance of
this Note and all accrued unpaid interest shall become due and payable, on the
first to occur of the following: (i) the seventh (7th) anniversary of the date
of this Note, (ii) at the option of the Holder, the first (1st) anniversary of
the closing of (A) an underwritten public offering of the Common Stock made
pursuant to an effective registration statement under the federal Securities Act
of 1933, other than a registration relating solely to either a transaction under
Rule 145 of the Securities and Exchange Commission or an employee benefit plan,
or (B) any merger or other transaction by which the Shares are exchanged for or
converted into securities which are part of a class of securities which are
listed for trading on an established securities exchange or otherwise
participate in an active public securities market, or (iii) the ninetieth (90th)
day following the day that the Maker voluntarily terminates his employment (as
defined in the Restricted Stock Purchase Agreement) with the Holder.
3. PREPAYMENTS
The Maker may prepay all or any portion of the principal sum and accrued
interest of this Note at any time, or from time to time, without penalty and
without first obtaining the consent of the Holder.
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4. APPLICATION OF PAYMENTS
All payments made hereunder, whether at maturity or as prepayments, shall
be applied first to any interest then accrued and unpaid, then to any other
charges due with respect to this Note, and then to the reduction of principal.
5. DEFAULT
The Maker shall be in default under this Note if:
(a) The Maker fails to make a payment of principal and/or interest
hereunder when due or breaches any covenant or condition contained herein, which
is not cured within ten (10) days after receipt of written notice thereof;
(b) The Maker voluntarily files for or is adjudicated as bankrupt or
insolvent, seeks or consents to the appointment of a receiver or trustee for
itself or for all or any part of its property, files a petition seeking relief
under the bankruptcy or similar laws of the United States or any state or any
other competent jurisdiction, makes a general assignment for the benefit of
creditors, or admits in writing its inability to pay its debts as they become
due; or
(c) A court of competent jurisdiction enters an order, judgment or decree
appointing, without the consent of the Maker, a receiver or trustee for all or
any part of its property or enters an order for relief or approves a petition
filed against the Maker under the bankruptcy or similar laws of the United
States or any state or other competent jurisdiction, and such order, judgment or
decree remains in force undischarged or unstayed for a period of ninety (90)
days.
6. REMEDIES
Upon the Maker's default, the Holder may (i) upon written notice to the
Maker, declare the entire principal sum and all accrued and unpaid interest
hereunder immediately due and payable, and (ii) exercise any and all of the
remedies provided under applicable law. Failure to exercise the foregoing
remedies upon any default by the Maker shall not constitute a waiver of the
right to exercise the same or any other remedies at any subsequent time with
respect to the same event or any other default.
7. WAIVERS
The Maker, and any endorsers or guarantors hereof, severally waive
diligence, presentment, protest and demand and also notice of protest, demand,
dishonor, acceleration, intent to accelerate and nonpayment of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time without notice, all without in any way affecting the liability of
the Maker or any endorsers or guarantors hereof. The Holder may waive its right
to require performance of or compliance with any term, covenant or condition of
this Note only by express written waiver.
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8. NOTICES
All notices hereunder must be in writing and shall be effective (i) if
delivered by hand, upon delivery; or (ii) if sent by mail, upon the earlier of
the date of receipt or five (5) business days after deposit in the mail,
certified or registered, postage prepaid.
9. TIME OF ESSENCE
Time is of the essence with respect to all matters set forth in this Note.
10. REPLACEMENT NOTE
If this Note is destroyed, lost or stolen, the Maker will deliver a new
note to the Holder on the same terms and conditions as this Note with a notation
of the unpaid principal and accrued and unpaid interest in substitution of the
prior Note. The Holder shall furnish to the Maker reasonable evidence that the
Note was destroyed, lost or stolen and any indemnity that may be reasonably
required by the Maker in connection with the replacement of this Note.
11. ENFORCEMENT
The Maker shall pay all costs, including, without limitation, reasonable
attorneys' fees and costs, incurred by the Holder in collecting the sums due
hereunder whether or not any legal action is actually filed, litigated or
prosecuted to judgment of award. In the event of any action or legal proceeding
concerning this Note or the enforcement of any rights hereunder, the Holder
shall be entitled to receive, in addition to any other relief to which the
Holder may be entitled, all legal and court costs and expenses, including
reasonable attorneys' fees, incurred by the Holder in connection with such
action.
12. GOVERNING LAW; SEVERABILITY
This Note shall be governed by and construed in accordance with the laws of
State of California as applied to contracts entered into and to be performed
entirely within that state. If any provision hereof is in conflict with any
statute or rule of California or otherwise is unenforceable for any reason, then
such provisions shall be deemed separable from and shall not invalidate any
other provision of this Note.
13. SUCCESSORS AND ASSIGNS
The Holder may not sell, assign, pledge or otherwise transfer this Note
without the prior written consent of the Maker, which will not be unreasonably
withheld. The terms of this Note shall inure to the benefit of and bind the
Maker and the Holder and their respective successors and permitted assigns.
14. SECURITY; RECOURSE TO THE MAKER
This Note is secured by a Pledge Agreement between the Maker, as pledgor,
and the Holder, as secured party, of even date herewith. Notwithstanding such
security, this Note constitutes a full recourse, personal obligation of the
Maker.
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IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed.
MAKER:
-------------------------
(Signature)
Address for Holder:
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
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EXHIBIT B
PLEDGE AGREEMENT
This Pledge Agreement is entered into as of __________, 19__, between
____________________ ("Pledgor") and Serena Software International, a California
corporation (the "Secured Party").
RECITALS
In consideration of Pledgor's Promissory Note dated of even date herewith
(the "Note"), the Secured Party has sold and issued to Pledgor __________ shares
of the Secured Party's Common Stock (the "Shares") pursuant to the terms and
conditions of a Restricted Stock Purchase Agreement between the Secured Party
and Pledgor. Pledgor has agreed that repayment of the Note will be secured by
the pledge of the Shares.
NOW, THEREFORE, the parties agree as follows:
1. CREATION OF SECURITY INTEREST
Pursuant to the provisions of the California Commercial Code, Pledgor
hereby grants to the Secured Party, and the Secured Party hereby accepts, a
present security interest in the Shares as collateral to secure the payment of
Pledgor's obligation to the Secured Party under the Note. Pledgor herewith
delivers to the Secretary of the Secured Party stock certificate no.______,
representing the Shares, issued in the name of Pledgor, to be held in pledge
pursuant to the terms of this Agreement. For purposes of this Agreement, the
Shares pledged hereby, together with any additional collateral pledged pursuant
to Section 5, shall hereinafter be collectively referred to as the "Collateral."
2. REPRESENTATIONS AND WARRANTIES
Pledgor hereby represents and warrants to the Secured Party that Pledgor
has the right to pledge the Collateral as provided herein. Pledgor further
agrees not to grant or create, nor attempt to grant or create, any security
interest, claim, lien, pledge or other encumbrance with respect to the
Collateral until the entire principal sum and accrued interest due under the
Note has been paid in full.
3. RIGHTS ON DEFAULT
In the event of default by Pledgor under the Note, the Secured Party and
its assigns shall have full power to sell, assign and deliver the whole or any
part of the Collateral at any broker's exchange or elsewhere, at public or
private sale, at the option of the Secured Party or its assigns, in order to
satisfy any part of the obligations of Pledgor now existing or hereinafter
arising under the Note should payment of such obligations be in default. On any
such public sale, the Secured Party or its assigns may purchase all or any part
of the Collateral. In addition, at its sole option, the Secured Party may elect
to retain the Collateral in satisfaction of Pledgor's obligation under the Note,
in accordance with the provisions and procedures set forth in the California
Commercial Code.
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4. ADDITIONAL REMEDIES
The rights and remedies granted to the Secured Party herein upon default
shall be in addition to all the rights, powers and remedies of the Secured Party
under the California Commercial Code and applicable law, and such rights, powers
and remedies shall be exercisable by the Secured Party with respect to all of
the Collateral. The Secured Party's reasonable expenses of holding the
Collateral, preparing it for resale or other disposition, and selling or
otherwise disposing of the Collateral, including attorneys' fees and other legal
expenses, will be deducted from the proceeds of any sale or other disposition
and will be included in the amounts Pledgor must tender to redeem the
Collateral. All rights, powers and remedies of the Secured Party shall be
cumulative and not alternative. Any forbearance or failure or delay by the
Secured Party in exercising any right, power or remedy hereunder shall not be
deemed to be a waiver of any such right, power or remedy and any single or
partial exercise of any such right, power or remedy hereunder shall not preclude
the further exercise thereof.
5. DIVIDENDS; VOTING
All dividends hereinafter declared on or payable with respect to the
Collateral during the term of this pledge (excluding only ordinary cash
dividends, which shall be payable to Pledgor so long as Pledgor is not in
default under the Note) shall be immediately delivered to the Secured Party to
be held in pledge hereunder. Pledgor shall be entitled to receive cash dividends
so long as Pledgor is not in default under the Note. Notwithstanding this
Agreement, Pledgor shall be entitled to vote any shares comprising the
Collateral, subject to any proxies granted by Pledgor.
6. ADJUSTMENTS
In the event that during the term of this pledge, any stock dividend,
reclassification, readjustment, stock split or other change is declared or made
with respect to the Collateral, or if warrants or any other rights, options or
securities are issued in connection with the Collateral, all new, substituted
and/or additional shares or other securities issued by reason of such change or
by reason of the exercise of such warrants, rights, options or securities, shall
be immediately pledged to the Secured Party to be held under the terms of this
Agreement in the same manner as the Collateral is held hereunder.
7. REDELIVERY OF COLLATERAL
Upon payment in full of the entire principal sum and accrued interest due
under the Note, the Secured Party shall immediately redeliver the Collateral
pledged hereunder to Pledgor by release of the Collateral from the escrow, and
this Agreement shall terminate. Upon request, the Secured Party will release a
pro rata portion of the Collateral as set forth above if a partial payment of
principal (plus all accrued interest) has been made under the Note.
8. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of the respective heirs, personal
representatives, successors and assigns of the parties hereto.
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9. GOVERNING LAW; SEVERABILITY
This Agreement shall be governed by and construed in accordance with the
laws of State of California as applied to contracts entered into and to be
performed entirely within that state. If any provision hereof is in conflict
with any statute or rule of California or otherwise is unenforceable for any
reason, then such provisions shall be deemed separable from and shall not
invalidate any other provision of this Agreement.
10. MODIFICATION
This Agreement shall not be amended without the written consent of both
parties hereto.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings related to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
PLEDGOR: SECURED PARTY:
Serena Software International,
a California corporation
-----------------------------
(Signature)
By:
-------------------------------
Xxxxxxx X. Xxxxx, President
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EXHIBIT C
SECTION 83(B) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue
Code, pursuant to Treasury Regulations Section 1.83-2.
(1) The taxpayer who performed the services is:
Name: ____________________________________________
Address: _____________________________________________________________
Taxpayer Identification. No.: _______________________
Taxable Year: Calendar Year 199__.
(2) The property with respect to which the election is being made is __________
shares of the common stock of Serena Software International, a California
corporation (the "Company").
(3) The property was issued on ____________________, 199__.
(4) The property is subject to a repurchase right pursuant to which the issuer
has the right, in the event that the taxpayer's employment with the issuer is
terminated for any reason, to acquire the property at its original purchase
price. The issuer's repurchase right lapses in installments over a period ending
_____________________________.
(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) is
$_____ per share for the common stock.
(6) The amount paid for such property is $_____ per share for the common stock.
(7) A copy of this statement was furnished to the Company, for whom taxpayer
rendered the services underlying the transfer of property.
(8) This statement is executed as o ____________________, 199__.
----------------------------- -------------------------
Taxpayer Spouse (if any)
This form must be filed with the Internal Revenue Service Center with which
taxpayer files his/her Federal income tax returns. The filing must be made
within 30 days after the execution date of the Restricted Stock Purchase
Agreement.
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EXHIBIT D
SPOUSAL CONSENT
I, ______________________________________, am the spouse of the person
identified as "Purchaser" below, who signed the foregoing Restricted Stock
Purchase Agreement. I have read and approve of the provisions of the Restricted
Stock Purchase Agreement. I agree to be bound by and accept the provisions of
the Restricted Stock Purchase Agreement in lieu of all other interests I may
have in the shares subject thereto, whether the interest may be community
property or otherwise.
Executed on ____________________, 19__.
------------------------------
[Signature]
Purchaser's Name:
--------------------------
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