e-PROFILE, INC.
1999 EQUITY COMPENSATION PLAN
STOCK PURCHASE AND RESTRICTION AGREEMENT
This STOCK PURCHASE AND RESTRICTION AGREEMENT (the
"AGREEMENT") is made this _____ day of ____________, ____, by and between
e-PROFILE, INC. (the "COMPANY"), and ______________________ ("OPTIONEE"). For
purposes of this Agreement, the Optionee includes the person to whom the
option was originally granted, as well as any person or entity who acquired
the right to exercise the Option pursuant to the terms of the e-PROFILE, INC.
1999 EQUITY COMPENSATION PLAN (the "PLAN").
BACKGROUND OF AGREEMENT:
1. Optionee was granted an Option (the "OPTION") on
________________, ____ pursuant to the Plan. The terms and conditions of the
Plan are incorporated in this Agreement by reference. Capitalized terms used but
not otherwise defined in this Agreement shall have the meanings given to them in
the Plan.
2. Pursuant to the Option, Optionee was granted the
right to purchase _____________ shares of the Company's Stock, as adjusted in
accordance with the Plan (the "OPTIONED SHARES"). The Option is evidenced by a
Stock Option agreement (the "OPTION AGREEMENT").
3. Optionee has elected to exercise the Option to
purchase ________ of such Optioned Shares (the "SHARES").
4. The Plan and the Option Agreement require that, as a
condition to Optionee's exercise of the Option, Optionee must execute this
Agreement.
* * * * * *
1. EXERCISE OF OPTION. Optionee hereby exercises all or
a portion of his or her Option to purchase _________ Shares at an exercise price
of $______ per Share.
2. TRANSFER RESTRICTIONS.
(a) The Optionee shall not sell, assign,
transfer, pledge, hypothecate, mortgage, encumber or otherwise dispose of all or
any of his or her Shares except as otherwise expressly provided in this
Agreement.
(b) The Optionee may transfer all or any of his
or her Shares (i) by way of gift to his or her spouse, parents, siblings, or
lineal descendants of the Optionee or to any trust for the exclusive benefit of
any such family member or the Optionee, provided that any such transferee shall
agree in writing with the Company, prior to, and as a condition precedent to
such transfer, to be bound by all of the provisions of this Agreement to the
same extent as if the transferee were the Optionee, or (ii) by will or the laws
of descent and distribution, in which event each such transferee shall be bound
by all of the provisions of this Agreement to the same extent as if such
transferee were the Optionee.
(c) Any purported transfer in violation of the
provisions of this Agreement shall be void.
3. TERMINATION OF SERVICE.
(a) If the Optionee's service with the Employer
terminates for any reason, the Company (which term, for purposes of this Section
3, includes the designees of the Company) shall have the right to purchase all
of the Shares owned by the Optionee. (As defined in more detail in the Plan,
"Employer" includes the Company and any entity that controls, is controlled by,
or is under common control with the Company. "Control" for purposes of the
preceding sentence constitutes ten percent (10%) or greater ownership of voting
securities of the Company.) If the Company exercises its purchase right pursuant
to subparagraphs (c), (d) and (e) below, then, except as specified otherwise by
Section 13(h) of the Agreement, the Optionee shall sell all of the Shares owned
by the Optionee to the Company at a purchase price per Share equal to the Fair
Market Value per Share as at the date of termination.
(b) If the Optionee does not exercise the Option
until after the Optionee's termination of service with the Employer (or if the
Optionee is not the original grantee, then if the Option is exercised after the
original grantee's termination of service with the Employer), the Company will
have the right to purchase all of the Shares owned by the Optionee. If the
Company exercises its repurchase right pursuant to subparagraphs (c), (d) and
(e) below, the Optionee shall sell all of the Shares owned by the Optionee to
the Company at a purchase price per Share equal to the Fair Market Value per
Share as at the date of exercise.
(c) In order to exercise the option to purchase
Optionee's Shares under this Section 3, the Company must deliver a written
notice to the Stockholder indicating its election to purchase the Shares and
specifying the number of Shares which the Company elects to purchase and the
purchase price for the Shares.
(d) If the Company elects not to exercise its
rights pursuant to this Section 3 or if the Company is legally prohibited from
or unable to repurchase the Shares during the period referred to below, then the
Company shall notify the Optionee and each designee of the Company, if any,
within the 60-day period following (i) with respect to a repurchase pursuant to
Section 3(a), the termination of service of the Optionee or (ii) with respect to
a repurchase pursuant to Section 3(b), the date of exercise of the Option. The
designees shall have the right, during the 30-day period following the Company's
notice, to purchase the number of Shares as the Company designates, on the same
terms and conditions as were applicable to the Company. The designee's right
shall be exercised by giving written notice of acceptance to the Company
specifying the number of Shares which such designee elects to purchase and the
purchase price for such Shares.
(e) The repurchase of Shares shall be made on a
date selected by the Company, within ninety (90) days after (i) with respect to
a repurchase pursuant to Section 3(a), the termination of service or (ii) with
respect to a repurchase pursuant to Section 3(b), the date of exercise of the
Option. The repurchase will be effected by delivery of payment to the Optionee,
by check or wire transfer, against receipt of one or more Certificates, properly
endorsed, evidencing the Optionee's Shares to be so repurchased.
(f) At the option of the Company, any purchaser
of Shares pursuant to Section 3 which is not the Company shall agree in writing,
in advance, to be bound by and comply with all applicable provisions of this
Agreement.
4. RIGHT OF FIRST REFUSAL ON DISPOSITIONS.
(a) If at any time the Optionee desires to sell
all or any part of his or her Shares pursuant to a bona fide offer from a third
party (the "PROPOSED TRANSFEREE"), then the Optionee shall submit a written
offer (the "OFFER") to sell such Shares (the "OFFERED SHARES") to the Company or
any entity or person designated by the Company ("DESIGNEE"). The Offer shall be
on terms and conditions, including price, not less favorable to the Company or
its designee than those on which the Optionee proposes to sell such Offered
Shares to the Proposed Transferee. The Offer shall disclose the identity of the
Proposed Transferee, the number of Offered Shares proposed to be sold, the total
number of Shares owned by the Optionee, the terms and conditions, including
price, of the proposed sale, and any other material facts relating to the
proposed sale. The Offer shall state that the Company or its designee may
acquire, in accordance with the provisions of this Agreement, all or any portion
of the Offered Shares for the price and upon the other terms and conditions set
forth therein.
(b) If the Company (or its designee, if one
exists) desires to purchase all or any part of the Offered Shares, then the
Company or its designee shall communicate in writing its election to purchase
(an "ACCEPTANCE") to the Optionee. The Acceptance shall state the number of
Offered Shares the Company or its designee desires to purchase and shall be
given to the Optionee within thirty (30) days after the date the Offer was made
to the Company. The
Acceptance shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, legally binding and enforceable agreement for the sale and
purchase of such Offered Shares. Sales of the Offered Shares to be sold to the
Company or its designee pursuant to this Section 4 shall be made at the offices
of the Company on the 45th day following the date the Offer was made (or if the
45th day is not a business day, then on the next succeeding business day). The
sales shall be effected by the Optionee's delivery to the Company of a
Certificate or Certificates evidencing the Offered Shares to be purchased by the
Company or its designee, duly endorsed for transfer to the Company or its
designee, as the case may be, which Shares shall be delivered free and clear of
all liens, charges, claims, and encumbrances of any nature whatsoever, against
payment to the Optionee of the purchase price therefor by the Company or its
designee, as the case may be.
(c) If the Company or its designee does not
purchase all of the Offered Shares, then the Offered Shares not purchased by the
Company or its designee may be sold by the Optionee at any time within ninety
(90) days after the date the Offer was made to the Company. Any such sale shall
be to the Proposed Transferee, at not less than the price and upon other terms
and conditions, if any, not more favorable to the Proposed Transferee than those
specified in the Offer. Any Offered Shares not sold within such 90-day period
shall continue to be subject to the requirements of a prior offer pursuant to
this Section 4.
5. FAILURE TO DELIVER SHARES. If the Optionee becomes
obligated to sell any Shares to the Company or its designee under this Agreement
and fails to deliver such Shares in accordance with the terms of this Agreement,
then the Company or its designee may, at its option, in addition to all other
remedies it may have, send to the Optionee the purchase price for such Shares as
is herein specified. The Company shall then, upon written notice to the
Optionee, (a) cancel on its books the Certificate or Certificates representing
the Shares to be sold and (b) in the case of a designee, issue, in lieu thereof,
in the name of such designee, a new Certificate or Certificates representing
such Shares. All of the Optionee's rights in and to such Shares shall terminate.
6. FURTHER LIMITATION AS TO TRANSFERS BY THE
STOCKHOLDER. In addition to the other restrictions provided in this Agreement or
otherwise, if requested by the Company or its underwriters for a public offering
of securities of the Company, Optionee shall not sell or otherwise transfer or
dispose of any Shares or other securities of the Company held by such Optionee
during the period of fourteen (14) days before, and one hundred eighty (180)
days following, the effective date of a registration statement filed by the
Company with the Securities and Exchange Commission relating to such offering
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other comparable form for similarly limited purposes
promulgated after the date hereof, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets of another
corporation).
7. REMEDIES.
(a) The Optionee expressly agrees that the
Company or its designee, as the case may be, will be irreparably damaged if this
Agreement is not specifically enforced. In case any one or more of the
agreements set forth in this Agreement shall have been breached by the Optionee,
the Company or its designee, as the case may be, may proceed to protect and
enforce their rights either by suit in equity and/or by action at law,
including, but not limited to, an action for damages as a result of any such
breach; and/or an action for specific performance of any such agreement
contained in this Agreement and/or a temporary or permanent injunction, in any
case without showing any actual damage. The rights, powers and remedies of the
parties under this Agreement are cumulative and not exclusive of any other
right, power or remedy which such parties may have under any other agreement or
law. No single or partial assertion or exercise of any right, power or remedy of
a party hereunder shall preclude any other or further assertion or exercise
thereof.
(b) The Optionee agrees that, until a public
market for the Shares exists, the Shares cannot be readily purchased, sold, or
evaluated in the open market, that they have a unique and special value, and
that the Company and its stockholders would be irreparably damaged if the terms
of this Agreement were not capable of being specifically enforced. For the
preceding reasons, among others, the Company shall be entitled to a decree of
specific performance of the terms of this Agreement or an injunction restraining
violation of this Agreement, said right to be in addition to any other remedies
of the Company.
8. ASSIGNMENT. The Company may assign its rights under
this Agreement to one or more persons or entities, who shall have the right to
exercise such rights in his, her or its own name and for his, her or its own
account. If the exercise of any such right requires the consent of any state or
other regulatory authority, the Optionee shall cooperate with the Company in
requesting such consent.
9. ADJUSTMENT. The number of Shares subject to the terms
and provisions of this Agreement during the term of this Agreement shall be
adjusted to give effect to any stock dividend or liquidating dividend of cash
and/or property, stock split, conversion or other change or reclassification of
the outstanding securities of the Company. If any such adjustment is made, any
and all new, substituted or additional securities or other property to which the
Optionee is entitled by reason of his or her ownership of Shares shall be
immediately subject to the terms of this Agreement, and be included in the term
"Shares" for all purposes with the same force and effect as the Shares presently
subject to this Agreement.
10. LEGENDS. All Certificates representing any Shares of
the Company subject to the provisions of this Agreement shall be endorsed with
the following legend in substantially the following form unless in the opinion
of counsel such legend is no longer necessary:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY
APPLICABLE STATE SECURITIES LAWS. THESE SHARES HAVE NOT BEEN
ACQUIRED WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED OR DISPOSED OF, BY GIFT OR OTHERWISE, OR
IN ANY WAY ENCUMBERED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL SATISFACTORY TO e-PROFILE, INC. THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS. MOREOVER, THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND RESTRICTED
BY THE PROVISIONS OF A CERTAIN STOCK PURCHASE AND RESTRICTION
AGREEMENT BETWEEN e-PROFILE, INC. AND THE STOCKHOLDER, A COPY
OF WHICH AGREEMENT WILL BE FURNISHED BY e-PROFILE, INC. UPON
WRITTEN REQUEST AND WITHOUT CHARGE, AND ALL OF THE PROVISIONS
OF SUCH AGREEMENT ARE INCORPORATED BY REFERENCE IN THIS
CERTIFICATE.
11. INVESTMENT REPRESENTATIONS. Unless the Shares have
been registered under the Securities Act of 1933, as amended (the "ACT"), in
which event the Company will so advise Optionee in writing, Optionee
acknowledges, agrees, represents and warrants, in connection with the proposed
purchase of the Shares, as follows:
(a) The Optionee is purchasing the Shares solely
for his or her own account for investment and not with a view to, or for resale
in connection with, any distribution of such Shares within the meaning of the
Act. The Optionee further represents that he or she does not have any present
intention of selling, offering to sell or otherwise disposing of or distributing
any of the Shares; and that the entire legal and beneficial interest of the
Shares he or she is purchasing is being purchased for, and will be held for the
account of, the Optionee only and not in any respect for any other person.
(b) The Optionee is aware of the Company's
business affairs and financial condition and has acquired sufficient information
about the Company to reach an informed and knowledgeable decision to acquire the
Shares. The Optionee has a preexisting
personal or business relationship with the Company or its officers or directors.
The Optionee has such knowledge and experience in business and financial matters
to enable him or her to evaluate the risks of the prospective investment and to
make an informed investment decision. The Optionee has discussed the Company and
its plans, operations and financial condition with its officers, has received
all such information as the Optionee deems necessary and appropriate to enable
him or her to evaluate the financial risk inherent in making an investment in
the Shares and has received satisfactory and complete information concerning the
business and financial condition of the Company in response to all inquiries in
respect thereof.
(c) The Optionee realizes that his or her
purchase of the Shares will be a speculative investment and that Optionee is
able, without impairing his or her financial condition, to hold the Shares for
an indefinite period of time and to suffer a complete loss on the investment.
(d) The Company has disclosed in writing that:
(i) the sale of the Shares has not been registered under the Act; (ii) the
Shares must be held indefinitely unless a transfer of them is subsequently
registered under the Act or an exemption from such registration is available;
(iii) the Company is under no obligation to register the Shares; and (iv) the
Company shall make a notation in its records of the aforementioned restrictions
on transfer and legends.
(e) The Optionee is aware of the provisions of
Rule 144, promulgated under the Act, which, in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or an affiliate of such issuer) in a non-public offering subject
to the satisfaction of certain conditions, including among other things:
(i) the resale occurring not less than
one (1) year from the date Optionee has purchased and paid for the Shares;
(ii) the availability of certain public
information concerning the Company;
(iii) the sale being through a broker in
an unsolicited "brokers' transaction" or in a transaction directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended); and
(iv) that any sale of the Shares may be
made by Optionee, if Optionee is an affiliate of the Company, only in limited
amounts during any three-month period not exceeding specified limitations.
The Optionee understands that at the time Optionee wishes to sell the
Shares there may be no public market upon which to make such a sale, and that,
even if such public market then exists, the Company may not be satisfying the
current public information requirements of Rule
144, and that, in such event, Optionee would be precluded from selling the
Shares under Rule 144 even if the one-year minimum holding period had been
satisfied.
The Optionee understands that in the event all of the requirements of
Rule 144 are not satisfied, registration under the Act, compliance with
Regulation A, or some other registration exemption will be required, and that,
notwithstanding the fact that Rule 144 is not exclusive, the Staff of the SEC
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and such
persons and their respective brokers who participate in such transactions do so
at their own risk.
(f) Without in any way limiting the Optionee's
representations and warranties set forth herein, the Optionee shall in no event
make any disposition of all or any portion of the Shares that he or she 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) the Optionee has (a) notified the
Company of the proposed disposition and furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (b)
furnished the Company with an opinion of Optionee's own counsel (satisfactory to
the Company) to the effect that such disposition will not require registration
of such Shares under the Act, and such opinion of the Optionee's counsel shall
have been concurred in by counsel for the Company and the Company has advised
the Optionee of such concurrence.
12. TERM. Except for Sections 2, 3, 4 and 5 hereof, which
shall terminate upon the consummation of a firm commitment underwritten public
offering of equity securities of the Company registered under the Act, this
Agreement shall continue in full force and effect until such time as the
Optionee has transferred all of the Shares (other than pursuant to Section 2(b))
in accordance with the terms of this Agreement.
13. MISCELLANEOUS.
(a) The Company shall not be required (i) to
transfer on its books any Shares that 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 have been so transferred.
(b) 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.
(c) Any notice, consent or other communication
required or permitted hereunder shall be given in writing and shall be deemed
effectively given: (a) upon personal delivery; (b) two (2) business days after
day of deposit if sent by regular mail; (c) one (1) business day after the
business day of deposit with a carrier if sent by Federal Express, Express Mail
or other express service (receipt requested), in each case to the appropriate
addresses, telex numbers and telecopier numbers set forth below (or at such
other address or numbers as such party may designate by ten (10) days' advance
written notice to the other party hereto):
(i) To the Optionee:
-------------------
-------------------
-------------------
(ii) To the Company:
e-PROFILE, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ________________
(d) This Agreement shall inure to the benefit of
the successors and assigns of the Company. Subject to all compliance with the
restrictions on transfer set forth in this Agreement, this Agreement shall be
binding upon Optionee, his heirs, executors, administrators, and permitted
successors and assigns.
(e) This Agreement shall be construed under the
laws of the State of Delaware and constitutes the entire Agreement of the
parties with respect to the subject matter hereof, superseding all prior written
or oral agreements with respect thereto, and no amendment or addition to this
Agreement shall be deemed effective unless agreed to in writing by the parties
hereto.
(f) If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, then
the remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way and shall be construed in
accordance with the purposes and tenor and effect of this Agreement.
(g) Nothing in this Agreement shall be deemed to
create any term of employment or engagement or affect in any manner whatsoever
the right or power of the Company to terminate Optionee's employment or
engagement.
(h) Notwithstanding (i) the execution and
delivery of this Agreement by the parties hereto or (ii) anything to the
contrary contained in this Agreement, (A) in the event of a Termination for
Cause, the Optionee shall forfeit all Shares for which the Company has not yet
delivered Share Certificates to the Optionee and the Company shall refund to the
Optionee the Option purchase price paid to the Company upon exercise of the
Option with respect to those Shares. In addition, the Company may withhold
delivery of Share Certificates pending the resolution of any inquiry that could
lead to a determination resulting in forfeiture. Further, with respect to Shares
for which the Company has delivered Share Certificates, the Company shall have
the right to purchase all of the Shares owned by the Optionee and the Optionee
shall sell such Shares to the Company at a purchase price per Share equal to the
lesser of the Fair Market Value per Share as at the date of exercise or the Fair
Market Value per Share as at the date of termination.
NOW, THEREFORE, for good and valuable consideration, which
Optionee acknowledges having received and believes to be sufficient, and
intending to be legally bound by the terms of this Agreement, the Optionee and
the Company agree to the terms of this Agreement. In witness whereof, the
parties hereto have executed this Agreement as of the day and year first
above-written.
e-PROFILE, INC.
By:
------------------------------
Title:
---------------------------
OPTIONEE:
----------------------------------
(Signature)
----------------------------------
(Print Name)
Address:
--------------------------
--------------------------
SPOUSAL CONSENT
The undersigned spouse of the Optionee agrees that his or her
interest, if any, in the Shares subject to the foregoing Stock Purchase and
Restriction Agreement shall be irrevocably bound by the terms of the Stock
Purchase and Restriction Agreement and further understands and agrees that any
community property interest, if any, shall be similarly bound by the terms of
the Stock Purchase and Restriction Agreement.
Date:
-------------------- ------------------------------------
Name of Spouse of Optionee
------------------------------------
Signature of Spouse of Optionee
ATTACHMENT A
TO STOCK PURCHASE AND RESTRICTION AGREEMENT
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _________________________ hereby sells,
assigns and transfers unto ___________________________, _____ shares of the
Common Stock (the "SHARES") of e-PROFILE, INC. (the "COMPANY"), standing in the
undersigned's name on the books of the Company represented by Certificate No.
_____ herewith, and does hereby irrevocably constitute and appoint
__________________ attorney to transfer the said Shares on the books of the
Company with full power of substitution in the premises.
Dated: Signature:
---------------- ---------------------------
