Exhibit 3.4
STOCK OPTION AGREEMENT
AGREEMENT made as of this 24th day of April, 2001 (the "Date of
Grant") between iJoin, Inc., a Delaware corporation (hereinafter referred to as
the "Company"), and _________________________________________, residing at
_________________________________________ (hereinafter referred to as the
"Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in recognition of services performed by the Optionee for
the Company, the Company now desires to grant to the Optionee the opportunity to
acquire Common Stock, $0.001 par value (hereinafter referred to as "Common
Stock"), of the Company on favorable terms;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Company and the Optionee hereby agree as follows:
1. Confirmation of Grant of Option. The Company, hereby grants to
the Optionee as a matter of separate inducement and agreement, the right to
purchase (hereinafter referred to as the "Option") an aggregate of
_______________ shares of Common Stock, subject to adjustment as provided herein
(such shares, as adjusted, hereinafter being referred to as the "Shares"). The
Option is not intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (the "Code") and shall be
treated as a nonqualified stock option.
2. Purchase Price. The purchase price of shares of Common Stock
covered by the Option will be $______ per share.
3. Exercise of Option.
(a) Subject to all of the terms and conditions of this Agreement,
the right to purchase shares under the Option shall vest on the Date of Grant.
(b) The Option may be exercised pursuant to the provisions of
this Section 3, by notice and payment to the Company as provided in Sections 7
and 12 hereof.
4. Term of Option. The term of the Option shall be a period of three
(3) years (minus one day) from the Date of Grant and this Option, to the extent
unexercised, shall expire on the day immediately prior to the third (3rd)
anniversary of the Date of Grant. The holder of the Option shall not have any
rights to dividends or any other rights of a stockholder with respect to any
shares of Common Stock subject to the Option until such shares shall have been
issued to him (as evidenced by the appropriate entry on the books of the Company
or a duly authorized transfer agent of the Company) provided that the date of
issuance shall not be earlier than the date this Option is exercised and payment
of the full purchase price of the shares of Common Stock (with respect to which
this Option is exercised) is made to the Company.
5. Non-transferability of Option. The Option shall not be assigned,
transferred or otherwise disposed of, or pledged or hypothecated in any way, and
shall not be subject to execution, attachment or other process. Any assignment,
transfer, pledge, hypothecation or other disposition of the Option attempted
contrary to the provisions hereof, or any levy of execution, attachment or other
process attempted upon the Option, will be null and void and without effect. Any
attempt to make any such assignment, transfer, pledge, hypothecation or other
disposition of the Option will cause the Option to terminate immediately upon
the happening of any such event; provided, however, that any such termination of
the Option under the foregoing provisions of this Section 5 will not prejudice
any rights or remedies which the Company or any Parent or Subsidiary may have
under this Agreement or otherwise.
6. Registration. At the time of issuance, the shares of Common Stock
subject hereto and issuable upon the exercise hereof may not be registered under
the Securities Act of 1933, as amended, and, if required upon the request of
counsel to the Company, the Optionee will give a representation as to his
investment intent with respect to such shares prior to their issuance as set
forth in Section 7 hereof. The Company may register or qualify the shares
covered by the Option for sale pursuant to the Securities Act of 1933, as
amended, at any time prior to or after the exercise in whole or in part of the
Option.
7. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the
Option shall be exercisable by notice in the manner set forth in Exhibit A
hereto (the "Notice") and provision for payment to the Company in accordance
with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number
of Shares with respect to which it is being exercised;
(ii) contain a representation and agreement as to investment
intent, if required by counsel to the Company with respect to such
Shares, in a form satisfactory to counsel to the Company;
(iii) be signed by the Optionee or the person or persons
entitled to exercise the Option and, if the Option is being
exercised by any person or persons other than the Optionee, be
accompanied by proof, satisfactory to counsel to the Company, of the
right of such other person or persons to exercise the Option;
(iv) include payment of the full purchase price for the
shares of Common Stock to be purchased pursuant to such exercise of
the Option; and
(v) be received by the Company on or before the date of the
expiration of this Option. In the event the date of expiration of
this Option falls on a day which is not a regular business day at
the Company's executive office, then such written Notice must be
received at such office on or before the last regular business day
prior to such date of expiration.
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(b) Payment of the purchase price of any shares of Common Stock,
in respect of which the Option shall be exercised, shall be made by the Optionee
or such person or persons at the place specified by the Company on the date the
Notice is received by the Company (i) by delivering to the Company a certified
or bank cashier's check payable to the order of the Company or (ii) if consented
to by the Company in writing, by delivering to the Company properly endorsed
certificates of shares of Common Stock (or certificates accompanied by an
appropriate stock power) with signature guaranties by a bank or trust company,
or (iii) if consented to by the Company in writing, by a concurrent sale of a
portion of the shares of Common Stock to be acquired upon the exercise of this
Option to the extent permitted upon delivery by the Optionee of a properly
executed notice, together with a copy of the Optionee's irrevocable instructions
to a broker acceptable to the Company to sell all or a portion of such shares of
Common Stock and deliver promptly to the Company the amount of sale or loan
proceeds sufficient to pay such exercise price; provided, that, in connection
therewith, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms, or (iv) by any combination of the foregoing. For
purposes of the immediately preceding sentence, an exercise effected by the
tender of Common Stock (or deemed to be effected by the tender of Common Stock)
may only be consummated with Common Stock held by the Optionee for a period of
six (6) months.
(c) The Option shall be deemed to have been exercised with
respect to any particular shares of Common Stock if, and only if, the preceding
provisions of this Section 7 and the provisions of Section 9 hereof shall have
been complied with, in which event the Option shall be deemed to have been
exercised on the date the Notice and related payment were received by the
Company. Anything in this Agreement to the contrary notwithstanding, any Notice
given pursuant to the provisions of this Section 7 shall be void and of no
effect if all of the preceding provisions of this Section 7 and the provisions
of Section 8 shall not have been complied with.
(d) The certificate or certificates for shares of Common Stock as
to which the Option shall be exercised will be registered in the name of the
Optionee, or if the Option is exercised by the Optionee and if the Optionee so
requests in the notice exercising the Option, will be registered in the name of
the Optionee and another person jointly, with right of survivorship and will be
delivered as soon as practical after the date the Notice is received by the
Company (accompanied by full payment of the exercise price), but only upon
compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all
or any part of the number of Shares specified in such Notice, his right to
exercise the Option with respect to such undelivered Shares may be terminated in
the sole discretion of the Company. The Option may be exercised only with
respect to full Shares.
(f) The Company shall not be required to issue or deliver any
certificate or certificates for shares of its Common Stock purchased upon the
exercise of any part of the Option prior to the payment to the Company, upon its
demand, of any amount requested by the Company for the purpose of satisfying its
liability, if any, to withhold federal, state or local income or earnings tax or
any other applicable tax or assessment (plus interest or penalties thereon, if
any, caused by a delay in making such payment) incurred by reason of the
exercise of this Option or the transfer of shares thereupon. Such payment shall
be made by the Optionee in
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cash or, with the written consent of the Company, by tendering to the Company
shares of Common Stock equal in value to the amount of the required withholding.
In the alternative, the Company may, at its option, satisfy such withholding
requirements by withholding from the shares of Common Stock to be delivered to
the Optionee pursuant to an exercise of the Option a number of shares of Common
Stock equal in value to the amount of the required withholding.
(g) In the event, at any time and from time to time, of any
merger or consolidation in which the Company shall be a constituent party and in
which the previously outstanding shares of Common Stock of the Company shall be
changed into or exchanged for different securities of the Company or changed
into or exchanged for common stock or other securities of another corporation or
other properly (including cash) or any combination of the foregoing (a
"Transaction"), then the Optionee, upon exercise of the Option at any time after
the consummation of such Transaction, shall be entitled to receive, in lieu of
the shares of Common Stock issuable upon such exercise prior to such
consummation, the stock and other securities, cash and property to which such
Optionee would have been entitled upon the consummation of such Transaction if
such holder had exercised such Option immediately prior thereof (subject
thereafter to further adjustments from and after the dates of the consummation
of such Transaction to correspond as nearly as possible to other adjustments
provided for herein).
8. Approval of Counsel. The exercise of the Option and the issuance
and delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Company's counsel of all legal matters in connection therewith,
including, but not limited to, compliance with the requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, and the requirements of any
stock exchange or automated trading medium upon which the Common Stock may then
be listed or traded.
9. Resale of Common Stock.
(a) If so requested by the Company, upon any sale or transfer of
the Common Stock purchased upon exercise of the Option (subject to the
provisions of Section 9(c) hereof), the Optionee shall deliver to the Company an
opinion of counsel satisfactory to the Company to the effect that either (i) the
Common Stock to be sold or transferred has been registered under the Securities
Act of 1933, as amended, and that there is in effect a current prospectus
meeting the requirements of Section 8(a) of said Act which is being or will be
delivered to the purchaser or transferee at or prior to the time of delivery of
the certificates evidencing the Common Stock to be sold or transferred, or (ii)
such Common Stock may then be sold pursuant to an exemption from registration
requirements or otherwise without violating Section 5 of said Act.
(b) The Common Stock issued upon exercise of the Option shall
bear the following (or similar) legend if required by counsel for the Company:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED,
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PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I) REGISTERED
UNDER SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS OR (II) IJOIN, INC., A DELAWARE CORPORATION (THE
"COMPANY"), SHALL HAVE RECEIVED FROM COUNSEL REASONABLY
ACCEPTABLE TO THE COMPANY, AN OPINION, IN FORM, SCOPE AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION OF SUCH SHARES UNDER THE SECURITIES ACT AND
UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS
NOT REQUIRED.
10. Reservation of Shares. The Company shall at all times during the
term of the Option reserve and keep available such number of shares of Common
Stock as will be sufficient to satisfy the requirements of this Agreement.
11. Limitation of Action. The Optionee and the Company each
acknowledges that every right of action accruing to him or it, as the case may
be, and arising out of or in connection with this Agreement against the Company
or a Parent or Subsidiary, on the one hand, or against the Optionee, on the
other hand, shall, irrespective of the place where an action may be brought,
cease and be barred by the expiration of three years from the date of the act or
omission in respect of which such right of action arises.
12. Notices. Each notice relating to this Agreement shall be in
writing and delivered in person, by recognized overnight courier or by certified
mail to the proper address. All notices to the Company shall be addressed to
iJoin, Inc., 2505 Second Avenue, Suite 500, Seattle, Washington 98121; Attn:
President, or to such other address as may be designated for such purpose by the
Company from time to time by notice given in the manner herein provided. All
notices to the Optionee shall be addressed to the Optionee or such other person
or persons at the Optionee's address above specified. Anyone to whom a notice
may be given under this Agreement may designate a new address by notice to that
effect.
13. Benefits of Agreement. This Agreement shall inure to the benefit
of the Company, the Optionee and their respective heirs, executors,
administrators, personal representatives, successors and permitted assignees.
14. Severability. In the event that any one or more provisions of
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
15. Governing Law. This Agreement will be construed and governed in
accordance with the laws of the State of Delaware.
16. Employment. Nothing contained in this Agreement shall be
construed as (a) a contract of employment between the Optionee and the Company
or any Parent or Subsidiary, (b) a right of the Optionee to be continued in the
employ or service of the Company
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or of any Parent or Subsidiary, or (c) a limitation of the right of the Company
or of any Parent or Subsidiary to discharge the Optionee at any time, with or
without cause (subject to any applicable employment agreement or consulting
arrangement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Date of Grant set forth above.
iJoin, Inc.
By:____________________________________
Name:
Title:
_______________________________________
[Name of Optionee]
_______________________________________
Social Security Number
EXHIBIT A
OPTION EXERCISE FORM
[DATE]
iJoin, Inc.
_______________
_______________
Attention: _____________
Dear Sirs:
Pursuant to the provisions of the Stock Option Agreement dated [ ]
(the "Agreement"), whereby you have granted to me a non-qualified stock option
(the "Option") to purchase up to [ ] shares of the Common Stock of iJoin, Inc.
(the "Company") subject to the terms of the Agreement, I hereby notify you that
I elect to exercise my option to purchase [ ] of the shares of Common Stock
covered by such Option at the [$___] per share price specified therein. In full
payment of the price for the shares being purchased hereby, I am delivering to
you herewith (i) certified or bank cashier's check payable to the order of the
Company in the amount of $____________, or (ii) a certificate or certificates
for [ ] shares of Common Stock of the Company, and which have a fair market
value as of the date hereof of $___________, [and a certified or bank cashier's
check, payable to the order of the Company, in the amount of $________________].
Any such stock certificate or certificates are endorsed, or accompanied
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by an appropriate stock power, to the order of the Company, with my signature
guaranteed by a bank or trust company or by a member firm of the New York Stock
Exchange. I hereby acknowledge that I am purchasing these shares for investment
purposes only and not for resale in violation of any federal or state securities
laws.
Very truly yours,
___________________________________
[Address]
(For notices, reports, dividend checks
and other communications to stockholders.)
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