Exhibit 4.4
EARLY EXERCISE STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made by and between ILLUSTRA INFORMATION
TECHNOLOGIES, INC., a Delaware corporation (the "Corporation"), and
____________________________ ("Purchaser").
WITNESSETH:
WHEREAS, Purchaser holds a _________ stock option to purchase
shares of common stock of the Corporation which Purchaser desires to
exercise; and
WHEREAS, Purchaser wishes to take advantage of the early exercise
provision of his option and therefore to enter into this Agreement;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Purchaser hereby agrees to purchase from the Corporation,
and the Corporation hereby agrees to sell to Purchaser, an aggregate of
_______ shares of the common stock (the "Stock") of the Corporation, for
an exercise price of $_______ per share (total exercise price:
______________ ($______)), payable in cash.
2. (a) All of the shares of the Corporation's Common Stock being
purchased by Purchaser pursuant to this Agreement (hereinafter sometimes
collectively referred to as the "Stock") shall be subject to the option
set forth in this paragraph 2 ("Purchase Option"). In the event
Purchaser shall cease to be employed by the Corporation (including a
parent or subsidiary of the Corporation) at any time prior to the fifth
anniversary of ______________ (the "Commencement Date") for any reason,
or no reason, with or without cause, the Corporation shall have the
right, at any time within 90 days after the date Purchaser ceases to be
so employed, to exercise the Purchase Option, which consists of the
right to purchase from Purchaser or his personal representative, as the
case may be, at the purchase price per share set forth in paragraph 1
above ("the Option Price"), up to but not exceeding the number of shares
of Stock which have not vested under the provisions of subparagraph (b)
below, upon the terms hereinafter set forth.
(b) The Corporation may exercise the Purchase Option as
to the maximum portion of the Stock specified in the following table:
Portion of the
Stock Subject to
If Employment Terminates Purchase Option
From the Commencement Date 100%
to the last day of the 12th month
following the Commencement Date
First day of the 13th month 100% minus 1/60 of the
following the Commencement Date Stock purchased for each month
to the last day of 60th month employed (subject to paragraph
(c) below)
After 60 months None
(c) Notwithstanding the provisions of paragraph (b), in the
event that Purchaser shall cease to be employed by the Corporation for
any reason (including Purchaser's death), or no reason with or without
cause, the Purchase Option may be exercised.
(d) In addition, and without limiting the foregoing
Purchase Option, if at any time during the term of the Purchase Option,
there occurs: (a) a dissolution or liquidation of the Corporation; (b) a
merger or consolidation involving the Corporation in which the
Corporation is not the surviving corporation; (c) a reverse merger in
which the corporation is the surviving corporation but the shares of the
Corporation's common stock outstanding immediately preceding the merger
are converted by virtue of the merger into other property, whether in
the form of other securities, cash or otherwise; or (d) any other
capital reorganization in which more than fifty percent (50%) of the
shares of the Corporation entitled to vote are exchanged, then: (i) if
there will be no successor to the Corporation, the Corporation shall
have the right to exercise its Purchase Option as to all or any portion
of the Stock then subject to the Purchase Option set forth above to the
same extent as if Purchaser's employment by the Corporation had ceased
on the date preceding the date of consummation of said event or
transaction, or (ii) the Purchase Option may be assigned to any
successor of the Corporation, and the Purchase Option shall apply if
Purchaser shall cease for any reason to be an employee of such successor
on the same basis as set forth above. In that case, references herein
to the "Corporation" shall be deemed to refer to such successor.
(e) Nothing in this Agreement shall affect in any manner
whatsoever the right or power of the Corporation, or a parent or
subsidiary of the Corporation, to terminate Purchaser's employment, for
any reason, with or without cause.
3. The Purchase Option shall be exercised by written notice signed
by an officer of the Corporation and delivered or mailed as provided in
paragraph 14. The Option Price shall be payable, at the option of the
Corporation, in cancellation of all or a portion of any outstanding
indebtedness of Purchaser to the Corporation or in cash (by check) or
both.
4. The Corporation may assign its rights under paragraphs 2 and 3
hereof.
5. If, from time to time during the term of the Purchase Option:
(i) there is any stock dividend or liquidating dividend of
cash and/or property, stock split, or other change in the character or
amount of any of the outstanding securities of the Corporation; or
(ii) there is any consolidation, merger or sale of all, or
substantially all, of the assets of the Corporation;
then, in such event, any and all new, substituted or additional
securities or other property to which Purchaser is entitled by reason of
his ownership of the Stock shall be immediately subject to the Purchase
Option and be included in the word "Stock" for all purposes of the
Purchase Option with the same force and effect as the shares of Stock
subject to the Purchase Option under the terms of paragraph 2. While
the total Option Price shall remain the same after each such event, the
Option Price per share of Stock upon exercise of the Purchase Option
shall be appropriately adjusted. Upon the occurrence of any event
specified in subsection (ii) above, the Purchase Option may be assigned
to any successor of the Corporation, and the Purchase Option shall apply
if Purchaser does not become or shall cease for any reason to be
employed by such successor or its affiliates. In that case, references
herein to the "Corporation" shall be deemed to refer to such successor.
6. Purchaser acknowledges that Purchaser is aware that the
Stock to be issued to Purchaser by the Corporation pursuant to this
Agreement has not been registered under the Act, and that the Stock is
deemed to constitute "restricted securities" under Rule 701 and Rule 144
promulgated under the Act. In this connection, Purchaser warrants and
represents to the Corporation that Purchaser is purchasing the Stock for
Purchaser's own account and Purchaser has no present intention of
distributing or selling said stock except as permitted under the Act and
Section 260.141.11 of Title 10 of the California Corporations Code,
attached hereto as Exhibit C. Purchaser further acknowledges that the
exemption from registration under Rule 144 will not be available for at
least three years from the date of sale of the Stock unless at least two
years from the date of sale (i) a public trading market then exists for
the Common Stock of the Corporation, (ii) adequate information
concerning the Corporation is then available to the public, and (iii)
other terms and conditions of Rule 144 are complied with; and that any
sale of the Stock may be made only in limited amounts in accordance with
such terms and conditions and that exemption from registration under
Rule 701 will not be available until ninety days after the Corporation
becomes subject to the reporting requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934 and that after such date the Stock
may be resold by persons other than affiliates in reliance on Rule 144
without compliance with paragraphs (c),(d),(e) and (h) thereof, and by
affiliates without compliance with paragraph (d) thereof.
7. All certificates representing any shares of Stock subject to
the provisions of this Agreement shall have endorsed thereon the
following legends:
(a) The shares represented by this certificate are
subject to an option set forth in an agreement between the Corporation
and the registered holder, or the predecessor in interest, a copy of
which is on file at the principal office of this corporation. Any
transfer or attempted transfer of any shares subject to such option is
void without the prior express written consent of the issuer of these
shares.
(b) The securities represented by this certificate have
not been registered under the Securities Act of 1933 (the "Act"). They
may not be sold or offered for sale or otherwise distributed unless the
securities are registered under the Act or an exemption therefrom is
available.
(c) Any legend required to be placed thereon by the
Corporation's Bylaws.
(d) Any legend required to be placed thereon by
appropriate Blue Sky officials.
8. As security for his faithful performance of the terms of
this Agreement and to insure that the Stock will be available for
delivery upon exercise of the Purchase Option as herein provided,
Purchaser agrees to deliver to and deposit with the Secretary of the
Corporation ("Escrow Agent"), as escrow agent in this transaction, two
Stock Assignments duly endorsed (with date and number of shares blank)
substantially in the form of Exhibit A attached hereto, together with
the certificate or certificates evidencing the Stock; said documents are
to be held by the Escrow Agent and delivered by the Escrow Agent
pursuant to the Joint Escrow Instructions of the Corporation and
Purchaser substantially in the form of Exhibit B attached hereto and
incorporated by this reference, which instructions shall also be
delivered to the Escrow Agent at the closing hereunder.
9. Purchaser shall not sell or transfer any shares of the Stock
then subject to the Purchase Option. Without in any way limiting the
foregoing, Purchaser further agrees that he shall in no event make any
disposition of all or any portion of the Stock which he is purchasing
unless and until:
(i) There is then in effect a registration statement
under the Act covering such proposed disposition and such disposition is
made in accordance with said registration statement; or
(ii) (1) He shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a
detailed statement of the circumstances surrounding the proposed
disposition, (2) he shall have furnished the Corporation with an opinion
of his own counsel to the effect that such disposition will not require
registration of such shares under the Act, and (3) such opinion of his
counsel shall have been concurred in by counsel for the Corporation,
such concurrence not to be unreasonably withheld, and the Corporation
shall have advised him of such concurrence.
10. The Corporation shall not be required (i) to transfer on its
books any shares of Stock of the Corporation which shall have been sold
or transferred in violation of any of the provisions set forth in this
Agreement or (ii) to treat as owner of such shares or to accord the
right to vote as such owner or to pay dividends to any transferee to
whom such shares shall have been transferred in violation of this
Agreement.
11. Subject to the provisions of paragraph 8 above, Purchaser
shall, during the term of this Agreement, exercise all rights and
privileges of a shareholder of the Corporation with respect to the Stock
deposited in said escrow.
12. Purchaser hereby agrees that for a period of not less than
90 days and up to a maximum of 180 days following the effective date of
the first registration statement of the Corporation covering Common
Stock (or other securities) to be sold on its behalf in an underwritten
public offering, he shall not, to the extent requested by the
Corporation and any underwriter, sell or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any Common
Stock of the Corporation held by him at any time during such period
except Common Stock included in such registration; provided, however,
that all officers and directors of the Corporation who hold securities
of the Corporation or options to acquire securities of the Corporation
enter into similar agreements.
In order to enforce the foregoing covenant, the Corporation may
impose stop-transfer instructions with respect to the Common Stock held
by Purchaser (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
13. Purchaser acknowledges receipt of a copy of Section
260.141.11 of Title 10 of the California Administrative Code, attached
hereto as Exhibit C.
14. The parties agree to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the
intent of this Agreement.
15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or
delivery by express courier, or four days after deposit in the United
States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to the other party hereto at its address
hereinafter shown below its signature or at such other address as such
party may designate by ten days' advance written notice to the other
party hereto.
16. This Agreement shall be governed by the laws of the State of
California and interpreted and determined in accordance with the laws of
the State of California.
17. This Agreement shall inure to the benefit of the successors
and assigns of the Corporation and, subject to the restrictions on
transfer herein set forth, shall be binding upon Purchaser, his heirs,
executors, administrators, successors and assigns.
18. This Agreement, together with the Exhibits hereto,
constitutes the entire, final and exclusive statement of the agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
PURCHASER ILLUSTRA INFORMATION TECHNOLOGIES, INC.
_________________________ By___________________________________
Address: Address:
_________________________ 0000 Xxxxxxxx
_________________________ Suite 2000
_________________________ Xxxxxxx, XX 00000
ATTACHMENTS:
Exhibit A Assignment Separate from Certificate
Exhibit B Joint Escrow Instructions
