Exhibit 10.25.2
APTIMUS, INC.
2001 STOCK PLAN
NOTICE OF GRANT OF RESTRICTED STOCK
Unless otherwise defined herein, capitalized terms shall have the same
meanings in this Notice of Grant as are defined in the 2001 Stock Plan (the
"Plan").
- --------------------------
- --------------------------
- --------------------------
[Name and Address of Participant]
The undersigned Participant has been granted Common Stock of the Company,
subject to the restrictions contained in the Plan and Restricted Stock Agreement
attached hereto as Exhibit A and Participant's ongoing Continuous Status as an
Employee or Consultant (as described in the Plan and the attached Restricted
Stock Purchase Agreement), as follows:
Grant Number: Total Number of Shares
Granted:
Date of Grant: Exercise Price per
Share:
Term/Expiration Date: Total Exercise Price:
APTIMUS, INC.
By:_________________________________
Title:______________________________
EXHIBIT A
APTIMUS, INC.
2001 STOCK PLAN
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated as of this ____st day of __________, 2001, is made by
and between ______________ ("Participant") and Aptimus, Inc., a Washington
corporation (the "Company"). Unless otherwise defined herein, capitalized terms
shall have the same meanings in this Notice of Grant as are defined in the 2001
Stock Plan (the "Plan").
WHEREAS, the Company wishes to grant Participant restricted shares of the
Company's Common Stock pursuant to the Plan upon the terms and subject to the
conditions set forth therein and herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Shares. Upon the terms and subject to the conditions and other
provisions set forth in the Plan and contained herein, effective upon the date
set forth in the Notice of Grant, Participant shall be and is hereby granted
_________ restricted shares of Common Stock (the "Shares").
2. Vesting Schedule. The Shares granted to Participant under this Agreement
shall be subject to certain restrictions and risks of forfeiture as set forth in
Section 3 below until vested in accordance with the terms of the Plan and this
Agreement. Unless forfeited pursuant to Section 3 below or accelerated pursuant
to the Plan or Section 4 below, the Shares shall become vested according to the
following schedule:
On or after each of the Cumulative percentage of
following dates shares vested
- ----------------------- ------------------------
20%
40%
60%
80%
100%
3. Restrictions and Forfeiture. Except as otherwise set forth in Section 4
below, Participant may not sell, transfer, pledge, subject to lien, assign or
otherwise hypothecate the Shares until such Shares have become vested in
accordance with the terms of Section 2 above. Except as otherwise set forth in
the Plan and in Section 4 below, any unvested Shares shall be entirely forfeited
in the event that the Participant's Continuous Status as
2
an Employee or Consultant terminates.
4. Lapse of Restrictions and Acceleration of Vesting. Notwithstanding anything
contained in this Agreement or in the Plan, in the event that the Participant's
Continuous Status as an Employee or Consultant terminates as a result of
Participant's death or Disability, then the restrictions upon Participant's
unvested Shares shall lapse and such Shares shall become immediately and fully
vested.
5. Company's Right of First Refusal. Before any vested Shares that are permitted
to be sold or otherwise transferred pursuant to this Agreement and that are held
by Participant 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 or its assignee(s) shall have a right of first
refusal to purchase the Shares on the terms and conditions set forth in this
Section (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 Participant 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"), and the Holder shall offer the Shares
at the Offered Price to the Company or its assignee(s).
(b) Exercise of Right of First Refusal. At any time within sixty (60) days
after receipt of the Notice, the Company and/or its assignee(s) may, by giving
written notice to the Holder, elect to purchase all, but not less than 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 ("Purchase Price") for the Shares
purchased by the Company or its assignee(s) under this Section shall be the
Offered Price.
(d) Payment. Payment of the Purchase Price shall be made, at the option of
the Company or its assignee(s), in cash (by check), by cancellation of all or a
portion of any outstanding indebtedness of the Holder to the Company (or, in the
case of repurchase by an assignee, to the assignee), or by any combination
thereof within thirty (30) days after receipt of the Notice or in the manner and
at the times 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(s) as provided in this Section, then the Holder may
sell or otherwise transfer such Shares to that Proposed Transferee at Fair
Market Value or at a higher price, provided that such sale or other transfer is
consummated within one hundred 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 shall continue to apply to
3
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 and/or its assignees
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 notwithstanding, the transfer of any or all of the
Shares during the Participant's lifetime or on the Participant's death by will
or intestacy to the Participant's immediate family or a trust for the benefit of
the Participant's immediate family shall be exempt from the provisions of this
Section, provided that the Participant notifies the Company in writing within
thirty (30) days of said transfer. "Immediate Family" as used herein shall mean
spouse, lineal descendant or antecedent, father, mother, brother or sister. In
such case, the transferee or other recipient shall receive and hold the Shares
so transferred subject to the provisions of this Agreement, including but not
limited to this Section and Section 3, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section.
(g) Termination of Right of First Refusal. The Right of First Refusal shall
terminate as to any Shares upon the date of the first sale of Common Stock of
the Company to the general public pursuant to a registration statement filed
with and declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
6. Rights as a Shareholder. The Shares will be represented by a stock
certificate registered in the name of Participant or Participant's nominee.
Except as otherwise provided in this Agreement, Participant will have all
voting, dividend, liquidation and other rights with respect to the Shares as if
such Participant were a holder of record of shares of unrestricted Common Stock;
provided, however, that if any dividend is declared and paid by the Company in
any form other than cash, such non-cash dividend shall be subject to the same
vesting schedule, forfeiture terms and other restrictions as are applicable to
the Shares on which such dividends were paid
7. Legends.
(a) To enforce the restrictions contained in this Agreement, Participant
understands and agrees that the Company shall cause the legends set forth below
or legends substantially equivalent thereto, to be placed upon any
certificate(s) evidencing ownership of the Shares together with any other
legends that may be required by the Company or by applicable state or federal
securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL
4
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, A RIGHT OF FIRST REFUSAL AND A REPURCHASE
OPTION HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE
RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS, RIGHT
OF FIRST REFUSAL REPURCHASE OPTION AND A CALL RIGHT ARE BINDING ON
TRANSFEREES OF THESE SHARES.
(b) Stop-Transfer Notices. Participant 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.
(c) Refusal to Transfer. The Company shall not be required (i) to transfer
on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any
Participant or other transferee to whom such Shares shall have been so
transferred.
8. Rights as an Participant. Participant acknowledges and agrees that
Participant is employed on an "at-will" basis by the Company (or any subsidiary
then employing Participant), that this Agreement confers no rights to continued
employment with the Company or any subsidiary of the Company and that
Participant's employment may be terminated by the Company or any subsidiary of
the Company at any time, for any reason or no reason. Except as set forth in
Section 4 hereof, this Agreement confers no rights to Participant to obtain any
form of compensation in the event of such employment termination.
9. Adjustments to Shares. In the event of any reorganization, merger,
consolidation, recapitalization, liquidation, reclassification, stock dividend,
stock split, combination of shares, rights offering, divestiture or
extraordinary dividend (including a spin-off or any other change in the
corporate structure or shares of the Company), the Shares shall be adjusted or
replaced with the number and kind of securities determined on the same basis as
for all other issued and outstanding shares of Common Stock.
10. Beneficiaries. Participant shall have the right to designate in writing one
or more beneficiaries to receive the Shares in the event of his death prior to
receiving full distribution thereof, and may change or revoke any prior
beneficiary designation by
5
similar instrument in writing prior to his death. No such designation, change or
revocation shall be effective unless executed by Participant and delivered to
the Company during the lifetime of the Participant. If Participant shall fail to
designate a beneficiary or, having revoked a prior beneficiary designation,
shall fail to designate a new beneficiary, or in the event the Participant's
beneficiary designation shall fail, in whole or in part, for any reason, then
the undistributed Shares shall be paid to the personal representative of
Participant's estate.
11. Tax Consequences. The Participant has reviewed with the Participant's own
tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. The Participant
is relying solely on such advisors and not on any statements or representations
of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participant's own
tax liability that may arise as a result of this investment or the transactions
contemplated by this Agreement. The Participant understands that Section 83 of
the Internal Revenue Code of 1986, as amended (the "Code"), taxes as ordinary
income the difference between the purchase price for the Shares and the Fair
Market Value of the Shares as of the date any restrictions on the Shares lapse.
In this context, "restriction" includes the right of the Company to buy back the
Shares pursuant to its repurchase option. The Participant understands that the
Participant may elect to be taxed at the time the Shares are purchased rather
than when and as the Company's repurchase option expires by filing an election
under Section 83(b) of the Code with the I.R.S. within thirty (30) days from the
date of purchase. THE FORM FOR MAKING THIS ELECTION IS ATTACHED AS EXHIBIT A-1
HERETO.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S
SOLE RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE
ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT
REQUESTS THE COMPANY OR ITS REPRESENTATIVES, INCLUDING THE
COMPANY'S LEGAL COUNSEL, TO MAKE THIS FILING ON THE
PARTICIPANT'S BEHALF.
12. Amendments. No change, modification or amendment of this Agreement
shall be valid unless the same is in writing and signed by both parties hereto.
13. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Washington.
6
By Participant's signature below, Participant represents that he or she is
familiar with the terms and provisions of the Plan, and hereby accepts this
Agreement subject to all of the terms and provisions thereof. Participant has
reviewed the Plan and this Agreement in their entirety, has had an opportunity
to obtain the advice of counsel prior to executing this Agreement and fully
understands all provisions of this Agreement. Participant agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Agreement.
Participant further agrees to notify the Company upon any change in the
residence indicated in the Notice of Grant.
Participant Aptimus, inc.
By:__________________________
___________________________ Its:
[Participant
EXHIBIT A-1
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE
The undersigned taxpayer hereby elects, pursuant to the above-referenced
Federal Tax Code, to include in taxpayer's gross income for the current taxable
year, the amount of any compensation taxable to taxpayer in connection with his
receipt of the property described below. The name, address, taxpayer
identification number and taxable year of the undersigned are as follows:
NAME:
ADDRESS:
TAXPAYER IDENTIFICATION NO.:
TAXABLE YEAR:
The property with respect to which the election is made is described as follows:
shares (the "Shares") of the Common Stock of APTIMUS, INC. (the "Company").
The date on which the property was transferred is: , 2001.
The property is subject to the following restrictions:
The Shares may be repurchased by the Company, or its assignee, on certain
events. This right lapses with regard to a portion of the Shares based on the
continued performance of services by the taxpayer over time.
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, of
such property is: $__________________.
The amount (if any) paid for such property is: $_________________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
7
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner.
Dated:___________________, 20_
Taxpayer
- ------------------------------
(Name)
The undersigned spouse of taxpayer joins in this election.
Dated:___________________, 20_
Spouse
- ------------------------------
(Name)
8
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PARTICIPANT:
COMPANY: APTIMUS, INC.
SECURITY:
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned
Participant represents to the Company the following:
(a) Participant 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 Securities. Participant is
acquiring these Securities for investment for Participant's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Participant acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of
Participant's investment intent as expressed herein. In this connection,
Participant understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Participant's representation was predicated solely upon a present intention to
hold these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Participant further understands that the Securities must
be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Participant
further acknowledges and understands that the Company is under no obligation to
register the Securities. Participant understands that the certificate evidencing
the Securities will be imprinted with a legend which prohibits the transfer of
the Securities unless they are registered or such registration is not required
in the opinion of counsel satisfactory to the Company, and any other legend
required under applicable state securities laws.
(c) Participant is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-
9
public offering subject to the satisfaction of certain conditions. Rule 701
provides that if the issuer qualifies under Rule 701 at the time of the grant of
the Option to the Participant, the exercise will be exempt from registration
under the Securities Act. In the event the Company becomes subject to the
reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, 90 days thereafter (or such longer period as any market
stand-off agreement may require) the Securities exempt under Rule 701 may be
resold, subject to the satisfaction of certain of the conditions specified by
Rule 144, including: (1) the resale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended); and, in the case of an affiliate, (2) the availability of certain
public information about the Company, (3) the amount of Securities being sold
during any three-month period not exceeding the limitations specified in Rule
144(e), and (4) the timely filing of a Form 144, if applicable.
(d) In the event that the Company does not qualify under Rule 701 at the
time of grant of the Option, then the Securities may be resold in certain
limited circumstances subject to the provisions of Rule 144, which requires the
resale to occur not less than one year after the later of the date the
Securities were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of Rule 144; and, in the case of
acquisition of the Securities by an affiliate, or by a non-affiliate who
subsequently holds the Securities less than two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of the paragraph
immediately above.
(e) Participant further understands that in the event all of the applicable
requirements of Rule 701 or 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
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 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk. Participant understands that no assurances can be given that
any such other registration exemption will be available in such event.
Participant:
- ------------------------------------
(Name)
Date: _______________________________