EXHIBIT 10.2.3
Exhibit II to Stock Option/
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Stock Issuance Plan
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CLEARCOMMERCE CORPORATION
STOCK ISSUANCE AGREEMENT
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AGREEMENT made as of this ______ day of ____________ 19__, by and among
ClearCommerce Corporation (f/k/a Outreach Communications Corporation), a
Delaware corporation _____________________________, and Participant in the
Company's 1997 Stock Option/Stock Issuance Plan.
All capitalized terms in this Agreement shall have the meaning assigned to
them in this Agreement or in the attached Appendix.
A. PURCHASE OF SHARES
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1. Purchase. Participant hereby purchases ____________ shares of
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Common Stock (the "Purchased Shares") pursuant to the provisions of the Stock
Issuance Program at the purchase price of $_________ per share (the "Purchase
Price").
2. Payment. Concurrently with the delivery of this Agreement to the
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Company, Participant shall pay the Purchase Price for the Purchased Shares in
cash or check payable to the Company and shall deliver a duly-executed blank
Assignment Separate from Certificate (in the form attached hereto as
Schedule 1) withrespect to the Purchased Shares.
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3. Escrow. The Company shall have the right to hold the Purchased
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Shares in escrow until those shares have vested in accordance with the Vesting
Schedule.
4. Stockholder Rights. Until such time as the Company exercises the
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Repurchase Right or the First Refusal Right, Participant (or any successor in
interest) shall have all the rights of a stockholder (including voting, dividend
and liquidation rights) with respect to the Purchased Shares, subject, however,
to the transfer restrictions of Articles B and C.
B. SECURITIES LAW COMPLIANCE
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1. Restricted Securities. The Purchased Shares have not been
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registered under the 1933 Act and are being issued to Participant in reliance
upon the exemption from such registration provided by SEC Rule 701 for stock
issuances under compensatory benefit plans such as the Plan. Participant hereby
confirms that Participant has been informed that the Purchased Shares are
restricted securities under the 1933 Act and may not be resold or transferred
unless the Purchased Shares are first registered under the Federal securities
laws or unless an exemption from such registration is available. Accordingly,
Participant hereby acknowledges that Participant is prepared to hold the
Purchased Shares for an indefinite period and that Participant is aware that SEC
Rule 144 issued under the 1933 Act which exempts certain resales of unrestricted
securities is not presently available to exempt the resale of the Purchased
Shares from the registration requirements of the 1933 Act.
2. Disposition of Purchased Shares. Participant shall make no
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disposition of the Purchased Shares (other than a Permitted Transfer) unless
and until there is compliance with all of the following requirements:
(1) Participant shall have provided the Company with a written summary
of the terms and conditions of the proposed disposition.
(2) Participant shall have complied with all requirements of this
Agreement applicable to the disposition of the Purchased Shares.
(3) Participant shall have provided the Company with written
assurances, in form and substance satisfactory to the Company, that (a) the
proposed disposition does not require registration of the Purchased Shares
under the 1933 Act or (b) all appropriate action necessary for compliance
with the registration requirements of the 1933 Act or any exemption from
registration available under the 1933 Act (including Rule 144) has been
taken.
The Company shall not be required (i) to transfer on its books any
Purchased Shares which have been sold or transferred in violation of the
provisions of this Agreement or (ii) to treat as the owner of the Purchased
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Shares, or otherwise to accord voting, dividend or liquidation rights to, any
transferee to whom the Purchased Shares have been transferred in contravention
of this Agreement.
3. Restrictive Legends. The stock certificates for the Purchased
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Shares shall be endorsed with the following restrictive legends:
(i) "The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares may not be sold or
offered for sale in the absence of (a) an effective registration statement
for the shares under such Act, (b) a 'no action' letter of the Securities
and Exchange Commission with respect to such sale or offer or (c)
satisfactory assurances to the Company that registration under such Act is
not required with respect to such sale or offer."
(ii) "The shares represented by this certificate are unvested and are
subject to certain repurchase rights and rights of first refusal granted to
the Company and accordingly may not be sold, assigned, transferred,
encumbered, or in any manner disposed of except in conformity with the
terms of a written agreement dated __________, 199___ between the Company
and the registered holder of the shares (or the predecessor in interest to
the shares). A copy of such agreement is maintained at the Company's
principal corporate offices.
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C. TRANSFER RESTRICTIONS
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1. Restriction on Transfer. Except for any Permitted Transfer,
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Participant shall not transfer, assign, encumber or otherwise dispose of any of
the Purchased Shares which are subject to the Repurchase Right. In addition,
Purchased Shares which are released from the Repurchase Right shall not be
transferred, assigned, encumbered or otherwise disposed of in contravention of
the First Refusal Fight or the Market Stand-Off.
2. Transferee Obligations. Each person (other than the Company)
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to whom the Purchased Shares are transferred by means of a Permitted Transfer
must, as acondition precedent to the validity of such transfer, acknowledge in
writing to the Company that such person is bound by the provisions of this
Agreement and that the transferred shares are subject to (i) the Repurchase
Right, (ii) the First Refusal Right and (iii) the Market Stand-Off, to the same
extent such shares would be so subject if retained by Participant.
3. Market Stand-Off.
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(a) In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the 1933 Act, including the Company's initial public offering, Owner
shall not sell, make any short sale of, loan, hypothecate, pledge, grant any
option for the purchase of, or otherwise dispose or transfer for value or
otherwise agree to engage in any of the foregoing transactions with respect to,
any Purchased Shares without the prior written consent of the Company or its
underwriters. Such restriction (the "Market Stand-Off") shall be in effect for
such period of time from and after the effective date of the final prospectus
for the offering as may be requested by the Company or such underwriters. In no
event, however, shall such period exceed one hundred eighty (180) days and the
Market Stand-Off shall in all events terminate two (2) years after the effective
date of the Company's initial public offering.
(b) Owner shall be subject to the Market Stand-Off provided
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and only if the officers and directors of the Company are also subject to
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similar restrictions.
(c) Any new, substituted or additional securities which are by
reason of any Recapitalization or Reorganization distributed with respect to the
Purchased Shares shall be immediately subject to the Market Stand-Off, to the
same extent the Purchased Shares are at such time covered by such provisions.
(d) In order to enforce the Market Stand-Off, the Company may
impose stop-transfer instructions with respect to the Purchased Shares until the
end of the applicable stand-off period.
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D. REPURCHASE RIGHT
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1. Grant. The Company is hereby granted the right (the
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"Repurchase Right"), exercisable at any time during the ninety (90)-day period
following the date Participant ceases for any reason to remain in Service, to
repurchase at the Purchase Price all or any portion of the Purchased Shares in
which Participant is not, at the time of his or her cessation of Service, vested
in accordance with the Vesting Schedule (such shares to be hereinafter referred
to as the "Unvested Shares").
2. Exercise of the Repurchase Right. The Repurchase Right shall
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be exercisable by written notice delivered to each Owner of the Unvested Shares
prior to the expiration of the ninety (90)-day exercise period. The notice shall
indicate the number of Unvested Shares to be repurchased and the date on which
the repurchase is to be effected, such date to be not more than thirty (30) days
after the date of such notice. The certificates representing the Unvested Shares
to be repurchased shall be delivered to the Company prior to the close of
business on the date specified for the repurchase. Concurrently with the receipt
of such stock certificates, the Company shall pay to Owner, in cash or cash
equivalents (including the cancellation of an purchase-money indebtedness), an
amount equal to the Purchase Price previously paid for the Unvested Shares which
are to be repurchased from Owner.
3. Termination of the Repurchase Right. The Repurchase Right
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shall terminate with respect to any Unvested Shares for which it is not timely
exercised under Paragraph D.2. In addition, the Repurchase Right shall terminate
and cease to be exercisable with respect to any and all Purchased Shares in
which Participant vests in accordance with the following Vesting Schedule:
(i) Upon Participant's completion of one (1) year of Service
measured from _____________, 199_____ (the "Vesting Commencement Date"),
Participant shall acquire a vested interest in, and the Repurchase Right
shall lapse with respect to, twenty-five percent (25%) of the Purchased
Shares.
(ii) Participant shall acquire a vested interest in, and the
Repurchase Right shall lapse with respect to, the balance of the Purchased
Shares commencing with the first anniversary of the Vesting Commencement
Date in a series of successive equal monthly installments upon
Participant's completion of each additional month of Service over the
thirty-six (36) month period measured from the first anniversary of the
Vesting Commencement Date under subparagraph (i) above.
All Purchased Shares as to which the Repurchase Right lapses shall,
however, remain subject to (i) the First Refusal Right and (ii) the Market
Stand-Off.
4. Recapitalization. Any new, substituted or additional securities
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or other property (including cash paid other than as a regular cash dividend)
which is by reason of any Recapitalization distributed with respect to the
balance of the Purchased Shares shall be immediately subject to the Repurchase
Right, but only to the extent the Purchased Shares are at the time covered
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by such right. Appropriate adjustments to reflect such distribution shall be
made to the number and/or class of Purchased Shares subject to this Agreement
and to the price per share to be paid upon the exercise of the Repurchase Right
in order to reflect the effect of any such Recapitalization upon the Company's
capital structure; provided, however, that the aggregate purchase price shall
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remain the same.
5. Corporate Transaction.
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(a) Immediately prior to the consummation of any Corporate
Transaction, the Repurchase Right shall automatically lapse in its entirety,
except to the extent the Repurchase Right is assigned to the successor
corporation (or parent thereof) in connection with the Corporate Transaction.
(b) To the extent the Repurchase Right remains in effect
following a Corporate Transaction, such right shall apply to the new capital
stock or other property (including any cash payments) received in exchange for
the Purchased Shares in consummation of the Corporate Transaction, but only to
the extent the Purchased Shares are at the time covered by such right.
Appropriate adjustments shall be made to the price per share payable upon
exercise of the Repurchase Right to reflect the effect of the Corporate
Transaction upon the Company's capital structure; provided, however, that
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the aggregate purchase price shall remain the same. The new securities or other
property (including cash payments) issued or distributed with respect to the
Purchased Shares in consummation of the Corporate Transaction shall immediately
be deposited in escrow with the Company (or the successor entity) and shall not
be released from escrow until Participant vests in such securities or other
property in accordance with the same Vesting Schedule in effect for the
Purchased Shares.
(c) The Repurchase Right shall automatically lapse in its
entirety, and all the Purchased Shares shall immediately vest in full, upon an
Involuntary Termination of Participant's Service within eighteen (18) months
following the effective date of a Corporate Transaction in which the Repurchase
Right has been assigned.
E. RIGHT OF FIRST REFUSAL
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1. Grant. The Company is hereby granted the right of first
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refusal (the "First Refusal Right"), exercisable in connection with any
proposed transfer of the Purchased Shares in which Participant has vested in
accordance with the Vesting Schedule. For purposes of this Article E. the term
"transfer" shall include any sale, assignment, pledge, encumbrance or other
disposition of the Purchased Shares intended to be made by Owner, but shall not
include any Permitted Transfer.
2. Notice of Intended Disposition. In the event any Owner of
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Purchased Shares in which Participant has vested desires to accept a bona fide
third-party offer for the transfer of any or all of such shares (the Purchased
Shares subject to such offer to be hereinafter referred to as the "Target
Shares"), Owner shall promptly (i) deliver to the Company written notice (the
"Disposition Notice") of the terms of the offer, including the purchase price
and the identity of the third-party
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offeror, and (h) provide satisfactory proof that the disposition of the Target
Shares to such third-party offeror would not be in contravention of the
provisions set forth in Articles B and C.
3. Exercise of the First Refusal Right. The Company shall, for a
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period of forty-five (45) days following receipt of the Disposition Notice, have
the right to repurchase any or all of the Target Shares subject to the
Disposition Notice upon the same terms as those specified therein or upon such
other terms (not materially different from those specified in the Disposition
Notice) to which Owner consents. Such right shall be exercisable by delivery of
written notice (the "Exercise Notice") to Owner prior to the expiration of the
forty-five (45)-day exercise period. If such right is exercised with respect to
all the Target Shares, then the Company shall effect the repurchase of such
shares, including payment of the purchase price, not more than fifteen (15)
business days after delivery of the Exercise Notice; and at such time the
certificates representing the Target Shares shall be delivered to the Company.
Should the purchase price specified in the Disposition Notice be
payable in property other than cash or evidences of indebtedness, the Company
shall have the right to pay the purchase price in the form of cash equal in
amount to the value of such property. If Owner and the Company cannot agree on
such cash value within thirty (30) days after the Company's receipt of the
Disposition Notice, the valuation shall be made by an appraiser of recognized
standing selected by Owner and the Company or, if they cannot agree on an
appraiser within forty-five (45) days after the Company's receipt of the
Disposition Notice, each shall select an appraiser of recognized standing and
the two (2) appraisers shall designate a third appraiser of recognized standing,
whose appraisal shall be determinative of such value. The cost of such
appraisal shall be shared equally by Owner and the Company. The closing shall
then be held on the later of (i) the fifteenth business day following delivery
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of the Exercise Notice or (ii) the fifteenth business day after such valuation
shall have been made.
4. Non-Exercise of the First Refusal Right. In the event the
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Exercise Notice is not given to Owner prior to the expiration of the forty-five
(45)-day exercise period, Owner shall have a period of thirty (30) days
thereafter in which to sell or otherwise dispose of the Target Shares to the
third-party offeror identified in the Disposition Notice upon terms (including
the purchase price) no more favorable to such third-party offeror than those
specified in the Disposition Notice; provided, however, that any such sale or
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disposition must not be effected in contravention of the provisions of Articles
B and C. The third-party offeror shall acquire the Target Shares free and clear
of the Repurchase Right and the First Refusal Right, but the acquired shares
shall remain subject to the provisions of Article B and Paragraph C.3. In the
event Owner does not effect such sale or disposition of the Target Shares within
the specified thirty (30)-day period, the First Refusal Right shall continue to
be applicable to any subsequent disposition of the Target Shares by Owner until
such right lapses.
5. Partial Exercise of the First Refusal Right. In the event the
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Company makes a timely exercise of the First Refusal Right with respect to a
portion, but not all, of the Target Shares specified in the Disposition Notice,
Owner shall have the option, exercisable by written notice to the Company
delivered within fifteen (15) business days after Owner's receipt of the
Exercise Notice, to
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effect the sale of the Target Shares pursuant to either of the following
alternatives:
(i) sale or other disposition of all the Target Shares to the
third-party offeror identified in the Disposition Notice, but in full
compliance with the requirements of Paragraph E.4, as if the Company did
not exercise the First Refusal Right; or
(ii) sale to the Company of the portion of the Target Shares which
the Company has elected to purchase, such sale to be effected in
substantial conformity with the provisions of Paragraph E.3. The First
Refusal Right shall continue to be applicable to any subsequent disposition
of the remaining Target Shares until such right lapses.
Failure of Owner to deliver timely notification to the Company shall
be deemed to be an election by Owner to sell the Target Shares pursuant to
alternative (i) above.
6. Recapitalization/Reorganization.
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(a) Any new, substituted or additional securities or other
property which is by reason of any Recapitalization distributed with respect to
the Purchased Shares shall be immediately subject to the First Refusal Right,
but only to the extent the Purchased Shares are at the time covered by such
right.
(b) In the event of a Reorganization, the First Refusal Right
shall remain in full force and effect and shall apply to the new capital stock
or other property received in exchange for the Purchased Shares in consummation
of the Reorganization, but only to the extent the Purchased Shares are at the
time covered by such right.
7. Lapse. The First Refusal Right shall lapse upon the earliest to
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occur of (i) the first date on which shares of the Common Stock are held of
record by more than five hundred (500) persons, (ii) a determination is made by
the Board that a public market exists for the outstanding shares of Common Stock
or (iii) a firm commitment underwritten public offering, pursuant to an
effective registration statement under the 1933 Act, covering the offer and sale
of the Common Stock in the aggregate amount of at least ten million dollars
($10,000,000). However, the Market Stand-Off shall continue to remain in full
force and effect following the lapse of the First Refusal Right.
F. SPECIAL TAX ELECTION
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1. Section 83(b) Election. Under Code Section 83, the excess of
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the fair market value of the Purchased 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 on the lapse date. For this
purpose, the term "forfeiture restrictions" includes the right of the Company to
repurchase the Purchased Shares pursuant to the Repurchase Right. Participant
may elect under Code Section 83(b) to be taxed at the time the Purchased Shares
are acquired, rather than when and as such
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Purchased Shares cease to be subject to such forfeiture restrictions. Such
election must be filed with the Internal Revenue Service within thirty (30) days
after the date of this Agreement. Even if the fair market value of the Purchased
Shares on 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 SCHEDULE 2 HERETO.
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PARTICIPANT UNDERSTANDS THAT FAILURE TO MAKE THIS FILING WITHIN THE APPLICABLE
THIRTY (30)-DAY PERIOD WILL RESULT IN THE RECOGNITION OF ORDINARY INCOME AS THE
FORFEITURE RESTRICTIONS LAPSE.
2. FILING RESPONSIBILITY. PARTICIPANT ACKNOWLEDGES THAT IT IS
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PARTICIPANT'S SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY
ELECTION UNDER CODE SECTION 83(b), EVEN IF PARTICIPANT REQUESTS THE COMPANY OR
ITS REPRESENTATIVES TO MAKE THIS FILING ON HIS OR HER BEHALF.
G. GENERAL PROVISIONS
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1. Assignment. The Company may assign the Repurchase Right
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and/or the First Refusal Right to any person or entity selected by the Board,
including (without limitation) one or more stockholders of the Company.
2. No Employment or Service Contract. Nothing in this Agreement
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or in the Plan shall confer upon Participant any right to continue in Service
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company (or any Parent or Subsidiary employing or
retaining Participant) or of Participant, which rights are hereby expressly
reserved by each, to terminate Participant's Service at any time for any reason,
with or without cause.
3. Notices. Any notice required to be given under this Agreement
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shall be in writing and shall be deemed effective upon personal delivery or upon
deposit in the U.S. mail, registered or certified, postage prepaid and properly
addressed to the party entitled to such notice at the address indicated below
such party's signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this paragraph
to all other parties to this Agreement.
4. No Waiver. The failure of the Company in any instance to
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exercise the Repurchase Right or the First Refusal Right shall not constitute a
waiver of any other repurchase rights and/or rights of first refusal that may
subsequently arise under the provisions of this Agreement or any other agreement
between the Company and Participant. No waiver of any breach or condition of
this Agreement shall be deemed to be a waiver of any other or subsequent breach
or condition, whether of like or different nature.
5. Cancellation of Shares. If the Company shall make available,
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at the time and place and in the amount and form provided in this Agreement, the
consideration for the Purchased
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Shares to be repurchased in accordance with the provisions of this Agreement,
then from and after such time, the person from whom such shares are to be
repurchased 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). Such shares shall be deemed purchased in accordance with the
applicable provisions hereof, and the Company shall be deemed the owner and
holder of such shares, whether or not the certificates therefor have been
delivered as required by this Agreement.
6. Participant Undertaking. Participant hereby agrees to take
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whatever additional action and execute whatever additional documents the Company
may deem necessary or advisable in order to carry out or effect one or more of
the obligations or restrictions imposed on either Participant or the Purchased
Shares pursuant to the provisions of this Agreement.
7. Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Delaware without resort
to that State's conflict-of-laws rules.
8. Successors and Assigns. The provisions of this Agreement
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shall inure to the benefit of, and be binding upon, the Company and its
successors and assigns and upon Participant, Participant's assigns and the legal
representatives, heirs and legatees of Participant's estate, whether or not any
such person shall have become a party to this Agreement and have agreed in
writing to join herein and be bound by the terms hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first indicated above.
CLEARCOMMERCE CORPORATION (F/K/A
OUTREACH COMMUNICATIONS
CORPORATION), a Delaware corporation
By:
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Title:
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Address:
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PARTICIPANT
Address:
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SCHEDULE 1
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED ____________________ hereby sell(s), assign(s) and
transfer(s) unto ClearCommerce Corporation (f/k/a Outreach Communications
Corporation), a Delaware corporation (the "Company"), _____________ (______)
shares of the Common Stock of the Company standing in his or her name on the
books of the Company represented by Certificate No. ______________ herewith and
do(es) hereby irrevocably constitute and appoint ___________________ Attorney to
transfer the said stock on the books of the Company with full power of
substitution in the premises. Dated:
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Signature
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Instruction: Please do not fill in any blanks other than the signature line.
Please sign exactly as you would like your name to appear on the issued stock
certificate. The purpose of this assignment is to enable the Company to
exercise the Repurchase Right without requiring additional signatures on the
part of Participant.
SCHEDULE 2
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SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident. No.:
(2) The property with respect to which the election is being made is _________
shares of the common stock of ClearCommerce Corporation (f/k/a Outreach
Communications Corporation), a Delaware corporation.
(3) The property was issued on ____________, 199____.
(4) The taxable year in which the election is being made is the calendar year
199___.
(5) The property is subject to a repurchase right pursuant to which the issuer
has the right to acquire the property at the original purchase price if for
any reason taxpayer's employment with the issuer is terminated. The
issuer's repurchase right lapses in a series of installments over a four
(4)-year period ending on ___________________, 199__.
(6) 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.
(7) The amount paid for such property is $__________ per share.
(8) A copy of this statement was furnished to ClearCommerce Corporation for
whom taxpayer rendered the services underlying the transfer of property.
(9) This statement is executed on ___________________________ 199____.
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Spouse (if any) Taxpayer
This election must be filed with the Internal Revenue Service Center with which
taxpayer files his or her Federal income tax returns and must be made within
thirty (30) days after the execution date of the Stock Issuance Agreement. This
filing should be made by registered or certified mail, return receipt requested.
Participant must retain two (2) copies of the completed form for filing with his
or her Federal and state tax returns for the current tax year and an additional
copy for his or her records.
APPENDIX
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The following definitions shall be in effect under the Agreement:
A. Agreement shall mean this Stock Issuance Agreement.
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B. Board shall mean the Company's Board of Directors.
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C. Code shall mean the Internal Revenue Code of 1986, as amended.
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D. Common Stock shall mean the Company's common stock.
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E. Corporate Transaction shall mean either of the following stockholder-
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approved transactions:
(i) a merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Company's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Company's assets in complete liquidation or dissolution of the
Company.
F. Company shall mean ClearCommerce Corporation (f/k/a Outreach
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Communications Corporation), a Delaware corporation.
G. Disposition Notice shall have the meaning assigned to such term in
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Paragraph E.2.
H. Exercise Notice shall have the meaning assigned to such term in
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Paragraph E.3.
I. Fair Market Value of a share of Common Stock on any relevant date
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prior to the initial public offering of the Common Stock shall be determined by
the Plan Administrator after taking into account such factors as it shall deem
appropriate.
J. First Refusal Right shall mean the right granted to the Company in
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accordance with Article E.
K. Involuntary Termination shall mean the termination of Participant's
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Service which occurs by reason of:
A-1
(i) Participant's involuntary dismissal or discharge by the Company for
reasons other than Misconduct, or
(ii) Participant's voluntary resignation following (A) a change in
Participant's position with the Company which materially reduces Participant's
level of responsibility, (B) a reduction in Participant's level of compensation
(including base salary, fringe benefits and participation in corporate-
performance based bonus or incentive programs) by more than fifteen percent
(15%) or (C) a relocation of Participant's place of employment by more than
fifty (50) miles, provided and only if such change, reduction or relocation is
effected by the Company without Participant's consent.
L. Market Stand-Off shall mean the market stand-off restriction
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specified in Paragraph C.3.
M. Misconduct shall mean the commission of any act of fraud,
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embezzlement or dishonesty by Participant, any unauthorized use or disclosure
by Participant of confidential information or trade secrets of the Company (or
any Parent or Subsidiary), or any other intentional misconduct by Participant
adversely affecting the business or affairs of the Company (or any Parent or
Subsidiary) in a material manner. The foregoing definition shall not be deemed
to be inclusive of all the acts or omissions which the Company (or any Parent or
Subsidiary) may consider as grounds for the dismissal or discharge of
Participant or any other person in the Service of the Company (or any Parent or
Subsidiary).
N. 1933 Act shall mean the Securities Act of 1933, as amended.
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O. Owner shall mean Participant and all subsequent holders of the
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Purchased Shares who derive their chain of ownership through a Permitted
Transfer from Participant.
P. Parent shall mean any corporation (other than the Company) in
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an unbroken chain of corporations ending with the Company, provided each
corporation in the unbroken chain (other than the Company) owns, at the time of
the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Q. Participant shall mean the person to whom shares are issued under
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the Stock Issuance Program.
R. Permitted Transfer shall mean (i) a gratuitous transfer of the
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Purchased Shares, provided and only if Participant obtains the Company's prior
written consent to such transfer, (ii) a transfer of title to the Purchased
Shares effected pursuant to Participant's will or the laws of intestate
succession following Participant's death or (iii) a transfer to the Company in
pledge as security for any purchase-money indebtedness incurred by Participant
in connection with the acquisition of the Purchased Shares.
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S. Plan shall mean the Company's 1997 Stock Option/Stock Issuance
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Plan.
T. Plan Administrator shall mean either the Board or a committee of
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Board members, to the extent the committee is at the time responsible for
administration of the Plan.
U. Purchase Price shall have the meaning assigned to such term in
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Paragraph A.1.
V. Purchased Shares shall have the meaning assigned to such term in
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Paragraph A.1.
W. Recapitalization shall mean any stock split, stock dividend,
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recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Common Stock as a class without the Company's receipt
of consideration.
X. Reorganization shall mean any of the following transactions:
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(i) a merger or consolidation in which the Company is not the
surviving entity,
(ii) a sale, transfer or other disposition of all or substantially
all of the Company's assets,
(iii) a reverse merger in which the Company is the surviving
entity but in which the Company's outstanding voting securities are
transferred in whole or in part to a person or persons different from
the persons holding those securities immediately prior to the merger,
or
(iv) any transaction effected primarily to change the state in
which the Company is incorporated or to create a holding company
structure.
Y. Repurchase Right shall mean the right granted to the Company in
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accordance with Article D.
Z. SEC shall mean the Securities and Exchange Commission.
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AA. Service shall mean the Participant's performance of services to
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the Company (or any Parent or Subsidiary) in the capacity of an employee,
subject to the control and direction of the employer entity as to both the work
to be performed and the manner and method of performance, a non-employee member
of the board of directors.
AB. Stock Issuance Program shall mean the Stock Issuance Program
----------------------
under the Plan.
AC. Subsidiary shall mean any corporation (other than the Company)
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in an unbroken chain of corporations beginning with the Company, provided each
corporation (other than the last corporation) in the unbroken chain owns, at the
time of the determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
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AD. Target Shares shall have the meaning assigned to such term in
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Paragraph E.2.
AE. Vesting Schedule shall mean the vesting schedule specified in
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Paragraph D.3, subject to the acceleration provisions upon an Involuntary
Termination following a Corporate Transaction.
AF. Unvested Shares shall have the meaning assigned to such term in
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Paragraph D.1.
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