EXHIBIT 4.5
MELITA INTERNATIONAL CORPORATION
1997 STOCK OPTION PLAN
EXERCISE AND SHAREHOLDER AGREEMENT
EXPLANATORY NOTE:
On October 23, 2001, divine, inc., a Delaware corporation ("divine"),
acquired eshare communications, Inc., a Georgia corporation ("eshare") in a
stock-for-stock merger with eshare surviving as a wholly owned subsidiary of
divine (the "MERGER"). In connection with the Merger, each share of common
stock, no par value per share, of eshare has been converted into the right to
receive 3.12 shares of divine Class A common stock. Each outstanding option to
purchase shares of eshare common stock with an exercise price that, when divided
by 3.12, was greater than $0.56, being the closing sale price of divine Class A
common stock on the trading day immediately prior to the effective time of the
merger, was terminated. Each outstanding eshare option with an exercise price
that, when divided by 3.12, was less than or equal to $0.56, became exercisable,
at an exercise price equal to the exercise price of the eshare option divided by
3.12, for a number of shares of divine Class A common stock determined by
multiplying the number of shares of eshare common stock subject to such eshare
option by 3.12.
Other than as set forth in the paragraph above, the rights and obligations
of each holder of eshare options granted pursuant to this Plan remain in full
force and effect.
This Exercise and Shareholder Agreement (the "EXERCISE AGREEMENT") is made
this_____ day of__________, 200___ by and between divine, inc. (the "COMPANY")
and the optionee named below ("OPTIONEE") pursuant to that certain Stock Option
Grant described below that was granted to Optionee under the Melita 1997 Stock
Option Plan (the "PLAN").
Optionee:
Social Security Number:
Address:
Number of Shares Purchased:
Price Per Share $________
Aggregate Purchase Price: $________
Date of Stock Option Grant: ________
Optionee hereby delivers to the Company the Aggregate Purchase Price by
check in the amount of $___________, receipt of which is acknowledged by the
Board of Directors ("BOARD") of the Company.
The Company and Optionee hereby agree as follows:
1. PURCHASE OF SHARES. On this date and subject to the terms and
conditions of this Exercise Agreement and the Plan, Optionee hereby exercises,
subject to the contingencies below, the Stock Option Grant between the Company
and Optionee dated as of the "DATE OF STOCK OPTION GRANT" set forth above (the
"OPTION") with respect to the "NUMBER OF SHARES PURCHASED" set forth above of
the Company's Common Stock at the "Aggregate Purchase Price" set forth above
(the "PURCHASE PRICE") and the "PRICE PER SHARE" set forth above (the "PURCHASE
PRICE PER SHARE"). The term "SHARES" refers to the shares of the Company's no
par value common stock purchased under this Exercise Agreement and includes all
securities received (a) in replacement of the Shares and (b) as a result of
stock dividends or stock splits in respect of the Shares. Capitalized terms used
in this Exercise Agreement that are not defined herein have the definitions
ascribed to them in the Plan and the Option.
2. REPRESENTATIONS OF PURCHASER. Optionee represents and warrants to
the Company that:
(a) Optionee acknowledges that Optionee has received, read and
understood the Plan and the Option and agrees to abide by and be
bound by their terms and conditions;
(b) Optionee is purchasing the Shares for Optionee's own account for
investment purposes only and not with a view to, or for sale in
connection with, a distribution of the Shares within the meaning of
the Securities Act of 1933, as amended (the "1933 ACT");
(c) Optionee has no present intention of selling or otherwise disposing
of all or any portion of the Shares;
(d) Optionee is fully aware of (i) the highly speculative nature of the
investment in the Shares; (ii) the financial hazards involved in the
investment of the Shares; and (iii) the lack of liquidity of the
Shares and the restrictions on transferability of the Shares (e.g.,
that Optionee may not be able to sell or dispose of the Shares or
use them as collateral for loans); and
(e) Optionee is capable of evaluating the merits and risks of this
investment, has the ability to protect Optionee's own interests in
this transaction and is financially capable of bearing a total loss
of this investment.
3. COMPLIANCE WITH SECURITIES LAWS. Optionee understands and
acknowledges that the Shares have not been registered under the 1933 Act and
that, notwithstanding any other provision of the Option to the contrary, the
exercise of any rights to purchase any Shares is expressly conditioned upon
compliance with the 1933 Act and all applicable state securities laws. Optionee
agrees to cooperate with the Company to ensure compliance with such laws.
4. COMPANY'S RIGHT OF FIRST REFUSAL. Before any Shares held by Optionee
or any transferee (either being sometimes referred to herein as the "HOLDER")
may be sold or otherwise transferred (including transfer by gift or operation of
law), the Company shall
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have an assignable right of first refusal to purchase the Shares on the terms
and conditions set forth in this Section 4 (the "RIGHT OF FIRST REFUSAL").
(a) NOTICE OF PROPOSED TRANSFER. The Holder of the Shares shall deliver
to the Company a written notice (the "NOTICE") stating (i) the
Holder's bona fide intention to sell or otherwise transfer such
Shares, (ii) the name of each proposed purchaser or other transferee
("PROPOSED TRANSFEREE"), (iii) the number of Shares to be
transferred to each Proposed Transferee, and (iv) the bona fide cash
price or other consideration for which the Holder proposes to
transfer the Shares (the "OFFERED PRICE"); in addition, by providing
the Notice, the Holder is deemed to be offering to sell the Shares
at the Offered Price to the Company.
(b) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within thirty (30)
days after receipt of the Notice, the Company or its assignee may,
by giving written notice to the Holder, elect to purchase any or all
of the Shares proposed to be transferred to any one or more of the
Proposed Transferees, at the purchase price determined in accordance
with Subsection (c) below.
(c) PURCHASE PRICE. The purchase price for the Shares purchased under
this Section 4 shall be the Offered Price. If the Offered Price
includes consideration other than cash, the cash equivalent value of
the non-cash consideration shall be determined by the Board in good
faith.
(d) PAYMENT. Payment of the purchase price shall be made, at the option
of the Company or its assignee, either (i) in cash (by check), by
cancellation of all or a portion of any outstanding indebtedness of
the Holder to the Company or such assignee, or by any combination
thereof within thirty (30) days after receipt of the Notice or (ii)
in the manner and at the time(s) set forth in the Notice.
(e) HOLDER'S RIGHT TO TRANSFER. If all of the Shares proposed in the
Notice to be transferred to a given Proposed Transferee are not
purchased by the Company and/or its assignee as provided in this
Section 4, then the Holder may sell or otherwise transfer such
Shares to that Proposed Transferee at the Offered Price or at a
higher price, provided that such sale or other transfer is
consummated within one hundred and twenty (120) days after the date
of the Notice and provided further that any such sale or other
transfer is effected in accordance with any applicable securities
laws and the Proposed Transferee agrees in writing that the
provisions of this Section 4 shall continue to apply to the Shares
in the hands of such Proposed Transferee. If the Shares described in
the Notice are not transferred to the Proposed Transferee within
such period, a new Notice shall be given to the Company, and the
Company shall again be offered the Right of First Refusal, before
any Shares held by the Holder may be sold or otherwise transferred.
(f) EXCEPTION FOR CERTAIN FAMILY TRANSFERS. Anything to the contrary
contained in this Section 4 notwithstanding, the transfer of any or
all of the Shares, during Optionee's lifetime or on Optionee's death
by will or intestacy, to Optionee's
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immediate family or to a trust for the benefit of Optionee or
Optionee's immediate family shall be exempt from the provisions of
this Section; provided, that as a condition to receiving the Shares,
the transferee or other recipient shall agree in writing to receive
and hold the Shares so transferred subject to the provisions of this
Agreement, and to transfer such Shares no further except in
accordance with the terms of this Agreement. As used herein,
"IMMEDIATE FAMILY" shall mean the Optionee's spouse, lineal
descendant or antecedent, father, mother, brother or sister.
(g) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First Refusal
shall terminate as to any Shares upon an Initial Public Offering (as
such term is defined in the Plan).
5. COMPANY'S REPURCHASE OPTION. The Company shall have the option to
repurchase all or a portion of the Shares on the terms and conditions set forth
in this Section 5 (the "REPURCHASE OPTION") if Optionee should cease to be
employed by the Company for any reason, or no reason, including without
limitation Optionee's death, disability, voluntary resignation or termination by
the Company with or without cause.
(a) RIGHT OF TERMINATION UNAFFECTED. Nothing in this Agreement shall be
construed to limit or otherwise affect in any manner whatsoever the
right or power of the Company to terminate Optionee's employment or
association with the Company at any time, for any reason or no
reason, with or without cause. For purposes of this Agreement,
Optionee shall be considered to be employed by the Company or
associated with the Company if Optionee is an officer, director or
full-time employee of the Company or any Parent or Subsidiary of the
Company or if the Board determines that Optionee is rendering
substantial services as a part-time employee, consultant, contractor
or advisor to the Company or any Parent or Subsidiary of the
Company. The Board shall have discretion to determine whether
Optionee has ceased to be employed by or associated with the Company
or any Parent or Subsidiary and the effective date on which such
employment or association is terminated (the "TERMINATION DATE").
(b) EXERCISE OF REPURCHASE OPTION. Subject to Section 5(e) below, any
time following the Termination Date, the Company may elect to
repurchase any or all of the Shares by giving Optionee written
notice of exercise of the Repurchase Option.
(c) CALCULATION OF REPURCHASE PRICE. In the event Optionee's employment
with the Company terminates for any reason whatsoever, the Company
or its assignee shall have the option to repurchase from Optionee
(or from Optionee's personal representative as the case may be) any
or all of the Shares at a price equal to the Fair Market Value (as
defined in the Plan) of such Shares on the Termination Date.
(d) PAYMENT OF REPURCHASE PRICE. The repurchase price shall be payable,
at the option of the Company or its assignee, by (i) check, (ii) by
cancellation of all or a
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portion of any outstanding indebtedness of Optionee to the Company
or such assignee, (iii) by delivery of a promissory note of the
Company payable in equal annual installments over a four (4) year
period from the date of repurchase at a per annum interest rate
equal to the prime rate as announced from time to time by the
Company's principal bank or, if the Company has no principal bank,
that rate announced by the Wall Street Journal as the prevailing
"PRIME RATE" of interest per annum, as of the Termination Date, or
(iv) any combination of the above.
(e) TERMINATION OF REPURCHASE RIGHTS. The Repurchase Option shall
terminate as to any Shares upon an Initial Public Offering (as such
term is defined in the Plan).
6. COMPLIANCE WITH FEDERAL AND STATE SECURITIES LAWS. Optionee
understands and acknowledges that, in reliance upon the representations and
warranties made by Optionee herein, the Shares have not been registered with the
Securities and Exchange Commission ("SEC") under the 1933 Act, but have been
issued under an exemption or exemptions from the registration requirements of
the 1933 Act that impose certain restrictions on Optionee's ability to transfer
the Shares and have not been registered under any Georgia securities laws or the
securities laws of any other state. Optionee understands that Optionee may not
transfer any Shares unless such Shares are registered under the 1933 Act and the
securities laws of Georgia (or the securities laws of any other state, if
applicable) or unless, in the opinion of counsel to the Company, an exemption
from such registration is available. Optionee understands that only the Company
may file a registration statement with the SEC or Georgia (or other applicable
states), and that the Company is under no obligation to do so with respect to
the Shares. Optionee has also been advised that an exemption from registration
may not be available or may not permit Optionee to transfer all or any of the
Shares in the amounts or at the times proposed by Optionee.
7. ESCROW. As security for the faithful performance of this Exercise
Agreement, Optionee agrees, immediately upon receipt of the certificate(s)
evidencing the Shares, to deliver such certificate(s), to the Secretary of the
Company or its designee ("ESCROW HOLDER"), who is hereby appointed to hold such
certificate(s) in escrow and to take all such actions and to effectuate all such
transfers and/or releases of such Shares as are in accordance with the terms of
this Exercise Agreement. Optionee and the Company agree that Escrow Holder shall
not be liable to any party to this Exercise Agreement (or to any other party)
for any actions or omissions unless Escrow Holder is grossly negligent relative
thereto. The Escrow Holder may rely upon any letter, notice or other document
executed by any signature reputed to be genuine and may rely upon advice of
counsel and obey any order of any court with respect to the transactions
contemplated herein. The Shares shall be released from escrow upon termination
of both the Right of First Refusal set forth in Section 4 and the Repurchase
Option set forth in Section 5; provided, however, that such release shall not
affect the rights of the Company with respect to any pledge of Shares to the
Company. Optionee hereby irrevocably constitutes and appoints Escrow Holder as
Optionee's agent and attorney-in-fact for the purpose of executing and
delivering any and all documents necessary to transfer any Shares purchased
hereunder to the Company pursuant to the terms of this Exercise Agreement and to
record such transfer on the books of the Company, such appointment being made
with full power of substitution in the premises.
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8. LEGENDS. Optionee understands and agrees that the certificate(s)
representing the Shares will bear legends in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
GEORGIA SECURITIES ACT OF 1973, AS AMENDED ("GEORGIA ACT"), UNDER ANY OTHER
STATE SECURITIES LAW, OR UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("FEDERAL
ACT"). THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR
SALE, HYPOTHECATED, SOLD OR TRANSFERRED, NOR WILL ANY ASSIGNEE OR TRANSFEREE
THEREOF BE RECOGNIZED BY THE CORPORATION AS HAVING AN INTEREST IN SUCH SHARES,
IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SHARES UNDER THE FEDERAL ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED, AND (II) AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THE SHARES UNDER THE GEORGIA ACT AND
UNDER ANY OTHER APPLICABLE STATE LAW, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION THAT SUCH SHARES WILL BE OFFERED FOR SALE, HYPOTHECATED, SOLD OR
TRANSFERRED ONLY IN A TRANSACTION THAT IS EXEMPT UNDER, OR THAT IS OTHERWISE IN
COMPLIANCE WITH, THE GEORGIA ACT AND ANY OTHER APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THAT CERTAIN EXERCISE
AND SHAREHOLDER AGREEMENT DATED THE _____ DAY OF _______________, 20___, A COPY
OF WHICH IS ON FILE WITH THE CORPORATION."
9. STOP-TRANSFER NOTICES. Optionee understands and agrees that, in
order to ensure compliance with the restrictions referred to herein, the Company
may issue appropriate "stop-transfer" instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
10. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF
THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX
CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR
ANY TAX ADVICE. IN PARTICULAR, OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED
WITH OPTIONEE'S TAX ADVISORS CONCERNING THE ADVISABILITY OF FILING AN ELECTION
WITH THE INTERNAL REVENUE SERVICE UNDER SECTION 83(B) OF THE INTERNAL REVENUE
CODE OF 1986, AS IT MAY BE AMENDED FROM TIME TO TIME.
11. ENTIRE AGREEMENT. The Plan and the Option are incorporated herein by
reference. This Exercise Agreement, the Plan and the Option constitute the
entire agreement of the parties and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof, and are governed by Georgia law except for that body of
law pertaining to conflict of laws.
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Submitted by: Accepted by:
------------------------- ------------------------
OPTIONEE: COMPANY:
divine, inc.
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(Print name of Optionee)
By:
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(Signature of Optionee)
Title:
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Dated: Dated:
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