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Exhibit 4.1
PEOPLESOFT, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made between Xxxxx Xxxxxx (the "Executive")
and PeopleSoft, Inc. (the "Company") as of __________________, 1999. WHEREAS the
Executive's employment agreement with the Company dated May 10, 1999 (the
"Employment Agreement") provides Executive with the right to purchase restricted
stock of the Company; NOW THEREFORE, the parties agree as follows:
1. Stock Purchase. The Company hereby sells to the Executive five hundred
thousand (500,000) shares of the Company's Common Stock (the "Shares") at a
purchase price of $.01 per share. Executive herewith delivers to the Company the
aggregate $5,000 purchase price for the Shares.
2. Repurchase Right.
(a) In the event the Executive ceases to provide services to the
Company as an employee or consultant, the Company shall, upon the date of such
termination, repurchase that number of shares which constitute the Unreleased
Shares (as defined in Section 3) at the original $.01 per share purchase price
(the "Repurchase Price") (the "Repurchase Right").
(b) The Repurchase Right shall be exercised by the Company by
delivering written notice to the Executive or the Executive's executor (with a
copy to the Escrow Holder (as defined in Section 5)) AND, at the Company's
option, (i) by delivering to the Executive or the Executive's executor a check
in the amount of the aggregate Repurchase Price, or (ii) by the Company
canceling an amount of the Executive'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 the payment of the aggregate
Repurchase Price in any of the ways described above, the Company shall become
the legal and beneficial owner of the Unreleased Shares being repurchased and
all rights and interests therein or relating thereto, and the Company shall have
the right to retain and transfer to its own name the number of Unreleased Shares
being repurchased by the Company.
3. Release of Shares From Repurchase Right.
(a) The Shares shall be released from the Company's Repurchase Right
in accordance with the vesting provisions set forth in the Employment Agreement.
(b) Any of the Shares which have not yet been released from the
Company's Repurchase Right are referred to herein as "Unreleased Shares."
(c) The Shares which have been released from the Company's Repurchase
Right shall be delivered to the Executive at the Executive's request (see
Section 5).
4. Tax Consequences. The Executive has reviewed with the Executive's own
tax advisors the federal and state tax consequences of this investment and the
transactions contemplated by this Agreement. The Executive is relying solely on
such advisors and not on any statements or representations of the Company or any
of its agents. The Executive understands that the Executive (and not the
Company) shall be responsible for the Executive's own tax liability that may
arise as a result of the transactions contemplated by this Agreement. The
Executive understands that Section 83 of the Internal Revenue Code of 1986, as
amended (the "Code"), taxes as ordinary income the difference between the
purchase price for the Shares and the Fair Market Value of the Shares as of the
date the Shares vest, and that Executive shall be required to make funds
available to the Company to satisfy the attendant tax withholding requirements.
The Executive understands that the Executive may elect to be taxed at the time
the Shares are purchased rather than when and as they vest by filing an election
under Section 83(b) of the Code with the IRS within 30 days from the date of the
purchase.
5. Escrow of Shares.
(a) To ensure the availability for delivery of the Executive's
Unreleased Shares upon exercise of the Repurchase Right by the Company, the
Executive shall, upon execution of this Agreement, deliver and deposit with an
escrow holder designated by the Company (the "Escrow Holder") the share
certificates representing the Unreleased Shares, together with the Assignment
Separate from Certificate (the "Stock Assignment") duly endorsed in blank,
attached hereto as Exhibit A. The Unreleased Shares and Stock Assignment shall
be held by the Escrow Holder, pursuant to the Joint
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Escrow Instructions of the Company and Executive attached as Exhibit A hereto,
until such time as the Company's Repurchase Right expires.
(b) If the Company exercises its Repurchase Right hereunder, the
Escrow Holder, upon receipt of written notice of such exercise, shall take all
steps necessary to accomplish such transfer.
(c) When the Repurchase Right has been exercised or expires
unexercised or a portion of the Shares has been released from such Repurchase
Right, upon Executive's request the Escrow Holder shall promptly cause a new
certificate to be issued for such released Shares and shall deliver such
certificate to the Company or the Executive, as the case may be.
(d) Subject to the terms hereof, the Executive shall have all the
rights of a stockholder with respect to such Shares while they are held in
escrow, including without limitation, the right to vote the Shares and receive
any cash dividends declared thereon. If, from time to time during the term of
the Company's Repurchase Right, there is (i) any stock dividend, stock split or
other change in the Shares, or (ii) any merger or sale of all or substantially
all of the assets or other acquisition of the Company, any and all new,
substituted or additional securities to which the Executive is entitled by
reason of the Executive's ownership of the Shares shall be immediately subject
to this escrow, deposited with the Escrow Holder and included thereafter as
"Shares" for purposes of this Agreement and the Company's Repurchase Right.
4. General Provisions.
(a) Choice of Law; Entire Agreement. This Agreement shall be governed
by the internal substantive laws, but not the choice of law rules, of
California. This Agreement (including the Exhibits to this Agreement) and the
Employment Agreement represent the entire agreement between the parties with
respect to the purchase of the Shares by the Executive, and may only be amended
in a writing signed by the parties hereto.
(b) Successors. The rights of the Company under this Agreement shall
be transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by the
Company's successors and assigns. The rights and obligations of the Executive
under this Agreement may only be assigned with the prior written consent of the
Company; provided, however, that Executive shall be permitted to transfer Shares
to family members (consistent with the rules under Form S-8) for estate planning
or wealth management purposes, subject to such transferees agreeing to be bound
by the terms and conditions of this Agreement.
(c) Waiver. Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such provision,
nor prevent that party from thereafter enforcing any other provision of this
Agreement. The rights granted both parties hereunder are cumulative and shall
not constitute a waiver of either party's right to assert any other legal remedy
available to it.
(d) Severability. Should any provision of this Agreement be found to
be illegal or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable. By Executive's signature below,
Executive represents that he is familiar with the terms of this Agreement, and
hereby accepts this Agreement subject to all of the terms and provisions
thereof. Executive has read this Agreement in its entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of this Agreement.
EXECUTIVE PEOPLESOFT, INC.
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Xxxxx Xxxxxx
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign and
transfer unto_________________________________________________ (__________)
shares of the Common Stock of PeopleSoft, Inc. standing in my name of the books
of said corporation represented by Certificate No. _____ herewith and do hereby
irrevocably constitute and appoint Wilson, Sonsini, Xxxxxxxx & Xxxxxx, attorney,
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
PeopleSoft, Inc. and the undersigned dated ______________, ______.
Dated: ____________________, _______
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(to be signed exactly as name
is to appear on stock
certificate)
INSTRUCTIONS: Please do not fill in the 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.
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EXHIBIT B
JOINT ESCROW INSTRUCTIONS
_____________, ____
[INSERT NAME]:
Stock Option Administration
PeopleSoft, Inc.
Dear [INSERT NAME]:
As Escrow Agent for both PeopleSoft, 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 the
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 right 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 same, 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, cancellation of indebtedness or some combination thereof) for the
number of shares of stock being purchased pursuant to the exercise of the
Company's repurchase right.
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 shareholder of the Company while the
stock is held by you. You are not authorized to incur any expenses chargeable to
Purchaser without Purchaser's prior written consent.
4. Upon written request of the Purchaser, unless the Company's repurchase
right has been exercised, you will deliver to Purchaser a certificate or
certificates representing so many shares of stock as are not then subject to the
Company's repurchase right. Promptly after cessation of Purchaser's service
relationship with the Company and any parent or subsidiary of the Company as an
employee or consultant, you will deliver to Purchaser a certificate
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or certificates representing the aggregate number of shares held or issued
pursuant to the Agreement and not subject to purchase by the Company or its
assignees pursuant to exercise of the Company's repurchase right.
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.
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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.
COMPANY: PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: General Counsel
PURCHASER:
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ESCROW AGENT: [Insert Name]
Stock Plan Administration
PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
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, and construed
and enforced in accordance with, the laws of the State of California.
Very truly yours,
PeopleSoft, Inc.
By:
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Title:
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Purchaser
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Xxxxx Xxxxxx
ESCROW AGENT:
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ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to the above-referenced Federal
Tax Code, to include in taxpayer's gross income for the current taxable year,
the amount of any compensation taxable to taxpayer in connection with his
receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME: TAXPAYER: 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 PeopleSoft,
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
be repurchased by the Company, or its assignee, on certain events. This right
lapses with regard to a portion of the Shares over time.
5. The fair market value at the time of transfer, determined without
regard to any restriction other than a restriction which by its terms will never
lapse, of such property is:
$
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6. The amount (if any) paid for such property is:
$
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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:
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Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated:
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Spouse of Taxpayer
