EXHIBIT 4.2
CHILI!SOFT, INC.
STOCK OPTION GRANT
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Optionee: Russ Ryan
Address:
Total Shares Subject to Option: A number of shares of common stock of the
Company determined by multiplying (i) the total value of all cash, stock or any
combination thereof to be paid pursuant to an acquisition (as defined below) of
the Company and as described in that certain Retention and Bonus Agreement by
and between the Company and the Optionee, dated as of January 12, 2000, by (ii)
0.02391304.
Exercise Price Per Share: $0.00001
Vesting Date: May 23, 2000
Expiration Date of Option: May 23, 2005
Type of Stock Option: Nonqualified
1. Grant of Option. Chili!Soft, Inc., a California corporation (the
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"Company"), hereby grants to the optionee named above ("Optionee") an option
(this "Option") to purchase the total number of shares of Common Stock of the
Company set forth above (the "Shares") at the exercise price per share set forth
above (the "Exercise Price"), subject to all of the terms and conditions of this
Grant.
2. Exercise Period of Option. The option rights granted hereunder are
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fully vested as of the Vesting Date and are fully exercisable to and including
May 23, 2005.
Notwithstanding the above, (i) the minimum number of Shares that may be
purchased upon any partial exercise of the Option is one hundred (100) shares,
and (ii) this Option shall expire on the Expiration Date set forth above and
must be exercised, if at all, on or before the Expiration Date. The portion of
Shares as to which an Option is exercisable in accordance with the above
schedule as of the applicable dates shall be deemed "Vested Options."
3. Restriction on Exercise. This Option may not be exercised unless such
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exercise is in compliance with the Securities Act of 1933, as amended, and all
applicable state securities laws, as they are in effect on the date of exercise,
and the requirements of any stock exchange or over-the-counter market on which
the Company's Common Stock may be listed or quoted at the time of exercise.
Optionee understands that the Company is under no obligation to register,
qualify or list the Shares with the Securities and Exchange Commission, any
state securities commission or any stock exchange to effect such compliance.
4. Manner of Exercise.
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(a) Exercise Agreement. This Option shall be exercisable by delivery
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to the Company, its successors or assigns, of an executed written Stock Option
Exercise Agreement in the form attached hereto as Exhibit I, or in such other
form as may be approved by the Company, its successors or assigns, which shall
set forth Optionee's election to exercise some or all of this Option, the number
of Shares being purchased, any restrictions imposed on the Shares and such other
representations and agreements as may be required by the Company to comply with
applicable securities laws.
(b) Exercise Price. Such notice shall be accompanied by full payment
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of the Exercise Price for the Shares being purchased. Payment for the Shares
may be made in cash (by check), or, where permitted by law, by any of the
following methods approved by the Committee at the date of grant of this Option,
or any combinations thereof:
(i) by cancellation of indebtedness of the Company to the Optionee;
(ii) by surrender of shares of Common Stock of the Company already
owned by the Optionee, or which were obtained by Optionee in
the open public market, having a Fair Market Value equal to the
exercise price of the Option;
(iii) by waiver of compensation due or accrued to Optionee for
services rendered;
(iv) provided that a public market for the Company's stock exists,
through a "same day sale" commitment from the Optionee and a
broker dealer that is a member of the National Association of
Securities Dealers, Inc. (an "NASD Dealer") whereby the
Optionee irrevocably elects to exercise the Option and to sell
a portion of the Shares so purchased to pay for the exercise
price and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the exercise price directly
to the Company; or
(v) provided that a public market for the Company's stock exists,
through a "margin" commitment from the Optionee and an NASD
Dealer whereby the Optionee irrevocably elects to exercise this
option and to pledge the Shares so purchased to the NASD Dealer
in a margin account as security for a loan from the NASD Dealer
in the amount of the exercise price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to
forward the exercise price directly to the Company.
(c) Withholding Taxes. Prior to the issuance of the Shares upon
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exercise of this Option, to the extent deemed applicable and relevant by the
Board, Optionee must pay or make adequate provision for any applicable federal
or state withholding obligations of the
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Company. The Optionee may provide for payment of Optionee's minimum statutory
withholding taxes upon exercise of the Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld. In such case, the Company shall issue the net number of
Shares to the Optionee by deducting the Shares retained from the Shares
exercised.
(d) Issuance of Shares. Provided that such notice and payment are in
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form and substance satisfactory to counsel for the Company, the Company shall
cause the Shares to be issued in the name of Optionee or Optionee's legal
representative.
5. Restrictions on Shares. The Company hereby reserves to itself and/or
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its assignee(s) (a) a right of first refusal to purchase all Shares that an
Optionee (or a subsequent transferee) may propose to transfer to a third party
and (b) for so long as the Company's stock is not publicly traded, a right to
repurchase a portion of or all Shares held by an Optionee upon the Optionee's
termination of employment or service with the Company or its Parent, Subsidiary
or Affiliate, except that the Company may repurchase a portion (but not all) of
the Shares held by an Optionee only if the Optionee first consents to such
repurchase, for any reason within three months of such termination of employment
or service at the higher of (i) the Optionee's original purchase price, or (ii)
the Fair Market Value of such Shares on the date of such termination of
employment of service. The terms of such a right of repurchase shall conform to
Section 260.140.41(k) of the California Corporations Commissioner's Rules, or
any successor rule.
6. Nontransferability of Option. This Option may not be transferred in
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any manner other than by will or by the law of descent and distribution and may
be exercised during the lifetime of Optionee only by Optionee or other permitted
transferee. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of the Optionee.
7. Federal Tax Consequences. Set forth below is a brief summary as of
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the date this form of Option Grant was adopted of some of the federal tax
consequences of exercise of this Option and disposition of the Shares. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT
TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION
OR DISPOSING OF THE SHARES.
(a) Exercise of Nonqualified Stock Option. If this Option does not
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qualify as an ISO, there may be a regular federal income tax liability upon the
exercise of the Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the Fair Market Value of the Shares on the date of exercise over the
Exercise Price. The Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount equal to a percentage of this compensation income at the
time of exercise.
(b) Disposition of Shares. In the case of a nonqualified option, if
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Shares are held for at least one year before disposition, any gain on
disposition of the Shares will be treated as long-term capital gain for federal
and California income tax purposes.
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8. Interpretation. Any dispute regarding the interpretation of this
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Grant shall be submitted by Optionee or the Company to the Company's Board of
Directors or the Committee, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or Committee shall be
final and binding on the Company and on Optionee.
9. Entire Agreement. The Stock Option Exercise Agreement attached hereto
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as Exhibit I are incorporated herein by this reference. This Grant and the Stock
Option Exercise Agreement constitute the entire agreement of the parties hereto
and supersede all prior undertakings and agreements with respect to the subject
matter hereof.
CHILI!SOFT, INC.
By:__________________________________
Title:_______________________________
4
ACCEPTANCE
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Optionee hereby accepts this Option subject to all the terms and conditions
of this Stock Option Grant. Optionee acknowledges that there may be adverse tax
consequences upon exercise of this Option or disposition of the Shares and that
Optionee should consult a tax adviser prior to such exercise or disposition.
OPTIONEE
___________________________________
Signature
___________________________________
Print Name
5
EXHIBIT I
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
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This Agreement is made this ___ day of ______________, ____ between
Chili!Soft, Inc., a California corporation (the "Company"), and the optionee
named below ("Optionee").
Optionee:___________________________________________
Social Security Number:_____________________________
Address:____________________________________________
____________________________________________________
Number of Shares Purchased:_________________________
Price Per Share: $0.00001
Aggregate Purchase Price:___________________________
Date of Option Grant: May 23, 2000
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Type of Stock Option: Nonqualified
Optionee hereby delivers to the Company the Aggregate Purchase Price, to
the extent permitted in the Option Grant, as follows:
[_] cash (check) in the amount of $_________, receipt of which is
acknowledged by the Company;
[_] by delivery of _________ fully-paid, nonassessable and vested shares
of the Common Stock of the Company owned by Optionee and owned free
and clear of all liens, claims, encumbrances or security interests,
valued at the current fair market value of $_________ per share (as
determined by the Board of Directors of the Company in good faith);
[_] by the waiver hereby of compensation due or accrued for services
rendered in the amount of $___________;
[_] by delivery of a "same day sale" commitment from the Optionee and a
broker dealer that is a member of the National Association of
Securities Dealers, Inc. (an "NASD Dealer") whereby the Optionee
irrevocably elects to exercise the Option and to sell a portion of the
Shares so purchased to pay for the exercise price of $_________ and
whereby the NASD Dealer irrevocably commits upon receipt of
Exhibit I - 1
such Shares to forward the exercise price directly to the Company
(this payment method may be used only if a public market for the
Company's stock exists); or
[_] by delivery of a "margin" commitment from the Optionee and an NASD
Dealer whereby the Optionee irrevocably elects to exercise this option
and to pledge the Shares so purchased to the NASD Dealer in a margin
account as security for a loan from the NASD Dealer in the amount of
the exercise price, and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the exercise price of
$_________ directly to the Company (this payment method may be used
only if a public market for the Company's stock exists).
The Company and Optionee hereby agree as follows:
1. Purchase of Shares. On this date and subject to the terms and
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conditions of this Agreement, Optionee hereby exercises the Stock Option Grant
between the Company and Optionee dated as of the Date of Option Grant set forth
above (the "Grant"), with respect to the Number of Shares Purchased set forth
above of the Company's Common Stock (the "Shares") at an aggregate purchase
price equal to 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 purchased under this 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.
2. Representations of Purchaser. Optionee represents and warrants to the
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Company that:
(a) Optionee has received, read and understood the Grant and agrees to
abide by and be bound by their terms and conditions.
(b) 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.
(c) Optionee is fully aware of (i) the highly speculative nature of
the investment in the Shares; (ii) the financial hazards involved; 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).
(d) 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").
(e) Optionee has no present intention of selling or otherwise
disposing of all or any portion of the Shares.
Exhibit I - 2
3. Compliance with Securities Laws. Optionee understands and
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acknowledges that the Shares have not been registered under the 1933 Act and
that, notwithstanding any other provision of the Grant 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. The
Shares are being issued under the 1933 Act pursuant to [the Company will check
the applicable box]:
[_] the exemption provided by Rule 701;
[_] the exemption provided by Rule 504;
[_] Section 4(2) of the 1933 Act;
[_] other: ______________________________________________________
4. Federal Restrictions on Transfer. Optionee understands that the
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Shares must be held indefinitely unless they are registered under the 1933 Act
or unless an exemption from such registration is available and that the
certificate(s) representing the Shares will bear a legend to that effect.
Optionee understands that the Company is under no obligation to register the
Shares, and that an exemption may not be available or may not permit Optionee to
transfer Shares in the amounts or at the times proposed by Optionee.
(a) Rule 144. Optionee has been advised that Rule 144 promulgated
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under the 1933 Act, which permits certain resales or unregistered securities, is
not presently available with respect to the Shares and, in any event, requires
that a minimum of one (1) year elapse between the date of acquisition of Shares
from the Company or an affiliate of the Company and any resale under Rule 144.
Prior to an initial public offering of the Company's stock, "nonaffiliates"
(i.e. persons other than officers, directors and major shareholders of the
Company) may resell only under Rule 144(k), which requires that a minimum of two
(2) years elapse between the date of acquisition of Shares from the Company or
an affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not
available to affiliates.
(b) Rule 701. If the exemption relied upon for exercise of the Shares
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is Rule 701, the Shares will become freely transferable, subject to limited
conditions regarding the method of sale, by nonaffiliates ninety (90) days after
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 (the "SEC"), subject to any lengthier market standoff
agreement contained in this Agreement or entered into by Optionee. Affiliates
must comply with the provisions (other than the holding period requirements) of
Rule 144.
5. State Law Restrictions on Transfer. Optionee understands that
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transfer of the Shares may be restricted by applicable state securities laws,
and that the certificate(s) representing the Shares may bear a legend or legends
to that effect.
Exhibit I - 3
6. Market Standoff Agreement. Optionee agrees in connection with any
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registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Optionee will not sell or otherwise dispose of any Shares without the prior
written consent of the Company or such underwriters, as the case may be, for a
period of time (not to exceed one hundred eighty (180) days) from the effective
date of such registration as the Company or the underwriters may specify for
employee shareholders generally.
7. Legends. Optionee understands and agrees that the certificate(s)
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representing the Shares will bear a legend in substantially the following forms,
in addition to any other legends required by applicable law:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE 'SECURITIES
ACT'), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH."
8. Stop-Transfer Notices. Optionee understands and agrees that, in order
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or 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.
9. Tax Consequences. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
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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, IF OPTIONEE IS AN INSIDER SUBJECT TO SECTION
16(b) OF THE SECURITIES EXCHANGE ACT OF 1934, AND IF THE OPTION BEING EXERCISED
WAS GRANTED WITHIN THE PRECEDING SIX MONTHS, OPTIONEE REPRESENTS THAT OPTIONEE
HAS CONSULTED WITH OPTIONEE'S TAX ADVISERS CONCERNING THE ADVISABILITY OF FILING
A SECTION 83(b) ELECTION (the "ELECTION") WITH THE INTERNAL REVENUE SERVICE. IN
THE EVENT THAT OPTIONEE MAKES AN ELECTION, OPTIONEE AGREES TO IMMEDIATELY SO
NOTIFY COMPANY.
10. Entire Agreement. The Grant is incorporated herein by reference.
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This Agreement, the Grant 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
Exhibit I - 4
matter hereof, and are governed by California law except for that body of law
pertaining to conflict of laws.
Submitted By: Accepted By:
OPTIONEE: CHILI!SOFT, INC.
By: ___________________________
____________________________________
[signature] Its: __________________________
Dated: ____________________________ Dated: ________________________
Address: __________________________
__________________________
__________________________
Exhibit I - 5