Attached files
Exhibit 10.1
IRONPLANET, INC.
1999 STOCK PLAN
(as amended and restated by the Board on November 12, 2009 and
ratified by the Stockholders on November 12, 2009)
1. Purposes and Term of the Plan.
(a) Purposes of the Plan. The purposes of this 1999 Stock Plan are to attract and
retain the best available personnel for positions of substantial responsibility, to provide
additional incentive to Employees and Consultants of the Company and its Subsidiaries and to
promote the success of the Companys business. Options granted under the Plan may be Incentive
Stock Options (as defined under Section 422 of the Code) or Nonstatutory Stock Options, as
determined by the Administrator at the time of grant of an Option and subject to the applicable
provisions of Section 422 of the Code, as amended, and the regulations promulgated thereunder.
Stock purchase rights may also be granted under the Plan.
(b) Term of the Plan. The Plan, as amended and restated herein, shall become
effective on the date of its adoption by the Board, subject to the approval of the Companys
stockholders as described in Section 19. The Plan shall terminate automatically 10 years after the
later of (i) the date when the Board adopted the Plan or (ii) the date when the Board approved the
most recent increase in the number of Shares reserved under Section 3 that was also approved by the
Companys stockholders. The Plan may be terminated on any earlier date pursuant to Section 15
below
2. Definitions. As used herein, the following definitions shall apply:
(a) Administrator means the Board or any of its Committees appointed pursuant to
Section 4 of the Plan.
(b) Affiliate means an entity other than a Subsidiary (as defined below) in which
the Company owns an equity interest.
(c) Applicable Laws means the legal requirements relating to the administration of
stock option plans under U.S. state corporate laws, U.S. federal and state securities laws, the
Code, any Stock Exchange and the applicable laws of any other country or jurisdiction where Options
are granted under the Plan.
(d) Board means the Board of Directors of the Company.
(e) Change in Control means a sale of all or substantially all of the Companys
assets, or a merger, consolidation or other capital reorganization of the Company with or into
another corporation; provided however that a merger, consolidation or other capital reorganization
in which the holders of more than 50% of the shares of capital stock of the Company outstanding
immediately prior to such transaction continue to hold (either by the voting securities remaining
outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the total voting power represented by the voting securities
of the Company, or such surviving entity, outstanding immediately after such transaction shall not
constitute a Change in Control.
(f) Code means the Internal Revenue Code of 1986, as amended.
(g) Committee means the Committee appointed by the Board of Directors to administer
the Plan in accordance with Section 4 below.
(h) Common Stock means the Common Stock of the Company.
(i) Company means IronPlanet, Inc., a Delaware corporation.
(j) Consultant means any person, including an advisor, who renders services to the
Company, or any Parent, Subsidiary or Affiliate, and is compensated for such services, and any
director of the Company whether compensated for such services or not.
(k) Continuous Status as an Employee or Consultant means the absence of any
interruption or termination of service as an Employee or Consultant. Continuous Status as an
Employee or Consultant shall not be considered interrupted in the case of: (i) sick leave; (ii)
military leave; (iii) family leave (iv), any other leave of absence approved by the Administrator,
provided that such leave is for a period of not more than 90 days, unless reemployment upon the
expiration of such leave is guaranteed by contract or statute, or unless provided otherwise
pursuant to Company policy adopted from time to time; or (v) in the case of transfers between
locations of the Company or between the Company, its Parent(s), Affiliates, Subsidiaries or their
respective successors. For purposes of this Plan, a change in status from an Employee to a
Consultant or from a Consultant to an Employee will not constitute an interruption of Continuous
Status as an Employee or Consultant.
(l) Director means a member of the Board.
(m) Employee means any person, including officers and directors, employed by the
Company or any Parent, Subsidiary or Affiliate of the Company, with the status of employment
determined based upon such minimum number of hours or periods worked as shall be determined by the
Administrator in its discretion, subject to any requirements of the Code. The payment by the
Company of a directors fee to a director shall not be sufficient to constitute employment of
such director by the Company.
(n) Exchange Act means the Securities Exchange Act of 1934, as amended.
(o) Fair Market Value means, as of any date, the fair market value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock exchange or a national market
system including without limitation the National Market of the National Association of Securities
Dealers, Inc. Automated Quotation (Nasdaq) System, its Fair Market
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Value shall be the closing sales price for such stock (or the closing bid, if no sales were
reported), as quoted on such system or exchange, or the exchange with the greatest volume of
trading in Common Stock for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq System (but not on the National Market
thereof) or regularly quoted by a recognized securities dealer but selling prices are not reported,
its Fair Market Value shall be the mean between the high bid and low asked prices for the Common
Stock for the last market trading day prior to the time of determination, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or
(iii) In the absence of an established market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the Administrator.
(p) Incentive Stock Option means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code, as designated in the applicable written
Option Agreement.
(q) Listed Security means any security of the Company which is listed or approved
for listing on a national securities exchange or designated or approved for designation as a
national market system security on an interdealer quotation system by the National Association of
Securities Dealers, Inc.
(r) Nonstatutory Stock Option means an Option not intended to qualify as an
Incentive Stock Option, as designated in the applicable written Option Agreement.
(s) Option means a stock option granted pursuant to the Plan.
(t) Option Agreement means a written agreement between an Optionee and the Company
reflecting the terms of an Option granted under the Plan and includes any documents attached to
such Option Agreement, including, but not limited to, a notice of stock option grant and a form of
exercise notice.
(u) Option Exchange Program means a program whereby outstanding Options are
exchanged for Options with a lower exercise price.
(v) Optioned Stock means the Common Stock subject to an Option or a Stock Purchase
Right.
(w) Optionee means an Employee or Consultant who receives an Option or a Stock
Purchase Right.
(x) Parent means a parent corporation, whether now or hereafter existing, as
defined in Section 424(e) of the Code, or any successor provision.
(y) Plan means this 1999 Stock Plan.
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(z) Reporting Person means an officer, director, or greater than 10% shareholder of
the Company within the meaning of Rule 16a-2 under the Exchange Act, who is required to file
reports pursuant to Rule 16a-3 under the Exchange Act.
(aa) Restricted Stock means shares of Common Stock acquired pursuant to a grant of a
Stock Purchase Right under Section 10 below.
(bb) Restricted Stock Purchase Agreement means a written agreement between a holder
of a Stock Purchase Right and the Company reflecting the terms of a Stock Purchase Right granted
under the Plan and includes any documents attached to such agreement.
(cc) Rule 16b-3 means Rule 16b-3 promulgated under the Exchange Act, as the same may
be amended from time to time, or any successor provision.
(dd) Share means a share of the Common Stock, as adjusted in accordance with Section
12 of the Plan.
(ee) Stock Exchange means any stock exchange or consolidated stock price reporting
system on which prices for the Common Stock are quoted at any given time.
(ff) Stock Purchase Right means the right to purchase Common Stock pursuant to
Section 10 below.
(gg) Subsidiary means a subsidiary corporation, whether now or hereafter existing,
as defined in Section 424(f) of the Code, or any successor provision.
3. Stock Subject to the Plan. Subject to the provisions of Section 12 of the Plan,
the maximum aggregate number of Shares that may be sold under the Plan is 15,668,018 Shares of
Common Stock (the Reserved Shares). The Shares may be authorized, but unissued, or
reacquired Common Stock. If an Option expires or becomes unexercisable for any reason without
having been exercised in full, or is surrendered pursuant to an Option Exchange Program, the
unpurchased Shares that were subject thereto shall, unless the Plan shall have been terminated,
become available for future grant under the Plan. In addition, any Shares of Common Stock that are
retained by the Company upon exercise of an Option or Stock Purchase Right in order to satisfy the
exercise or purchase price for such Option or Stock Purchase Right or any withholding taxes due
with respect to such exercise shall be treated as not issued and shall continue to be available
under the Plan. Effective as of the date of adoption of this Plan, Shares issued under the Plan
and later repurchased by the Company pursuant to any repurchase right that the Company may have
shall be available for future grant under the Plan; provided that the total number of Shares issued
(counting each reissuance of a Share that was previously issued and then forfeited or repurchased
by the Company as a separate issuance) under the Plan upon exercise of Incentive Stock Options
shall not exceed two times the Reserved Shares (subject to adjustment under Section 12(a)) over the
term of the Plan.
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4. Administration of the Plan.
(a) Initial Plan Procedure. Prior to the date, if any, upon which the Company becomes
subject to the Exchange Act, the Plan shall be administered by the Board or a Committee appointed
by the Board.
(b) Plan Procedure After the Date, if any, Upon Which the Company Becomes Subject to the
Exchange Act.
(i) Multiple Administrative Bodies. If permitted by Rule 16b-3, grants under the Plan
may be made by different bodies with respect to Directors, non-Director officers and Employees or
Consultants who are not Reporting Persons.
(ii) Administration With Respect to Reporting Persons. With respect to grants of
Options or Stock Purchase Rights to Employees who are Reporting Persons, such grants shall be made
by (A) the Board if the Board may make grants to Reporting Persons under the Plan in compliance
with Rule 16b-3, or (B) a Committee designated by the Board to make grants to Reporting Persons
under the Plan, which Committee shall be constituted in such a manner as to permit grants under the
Plan to comply with Rule 16b-3. Once appointed, such Committee shall continue to serve in its
designated capacity until otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill vacancies, however caused,
and remove all members of the Committee and thereafter directly make grants to Reporting Persons
under the Plan, all to the extent permitted by Rule 16b-3.
(iii) Administration With Respect to Consultants and Other Employees. With respect to
grants of Options or Stock Purchase Rights to Employees or Consultants who are not Reporting
Persons, the Plan shall be administered by (A) the Board or (B) a Committee designated by the
Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws.
Once appointed, such Committee shall continue to serve in its designated capacity until otherwise
directed by the Board. From time to time the Board may increase the size of the Committee and
appoint additional members thereof, remove members (with or without cause) and appoint new members
in substitution therefor, fill vacancies, however caused, and remove all members of the Committee
and thereafter directly administer the Plan, all to the extent permitted by the Applicable Laws.
(c) Powers of the Administrator. Subject to the provisions of the Plan and in the
case of a Committee, the specific duties delegated by the Board to such Committee, and subject to
the approval of any relevant authorities, including the approval, if required, of any Stock
Exchange, the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Stock, in accordance with Section 2(o) of
the Plan;
(ii) to select the Consultants and Employees to whom Options and Stock Purchase Rights or any
combination thereof may from time to time be granted hereunder;
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(iii) to determine whether and to what extent Options and Stock Purchase Rights or any
combination thereof are granted hereunder;
(iv) to determine the number of shares of Common Stock to be covered by each such award
granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of
any award granted hereunder, which terms and conditions include but are not limited to the exercise
or purchase price, the time or times when Options or Stock Purchase Rights may be exercised (which
may be based on performance criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Option, Optioned Stock, Stock
Purchase Right or Restricted Stock, based in each case on such factors as the Administrator, in its
sole discretion, shall determine;
(vii) to determine whether and under what circumstances an Option may be settled in cash under
Section 9(g) instead of Common Stock;
(viii) to reduce the exercise price of any Option to the then current Fair Market Value if the
Fair Market Value of the Common Stock covered by such Option shall have declined since the date the
Option was granted;
(ix) to determine the terms and restrictions applicable to Stock Purchase Rights and the
Restricted Stock purchased by exercising such Stock Purchase Rights;
(x) to initiate an Option Exchange Program;
(xi) to construe and interpret the terms of the Plan and awards granted under the Plan; and
(xii) in order to fulfill the purposes of the Plan and without amending the Plan, to modify
grants of Options or Stock Purchase Rights to participants who are foreign nationals or employed
outside of the United States in order to recognize differences in local law, tax policies or
customs.
(d) Effect of Administrators Decision. All decisions, determinations and
interpretations of the Administrator shall be final and binding on all holders of Options or Stock
Purchase Rights.
5. Eligibility.
(a) Recipients of Grants. Nonstatutory Stock Options and Stock Purchase Rights may be
granted to Employees and Consultants. Incentive Stock Options may be granted only to Employees;
provided however that Employees of Affiliates shall not be eligible to receive Incentive Stock
Options. An Employee or Consultant who has been granted an Option or Stock Purchase Right may, if
he or she is otherwise eligible, be granted additional Options or Stock Purchase Rights.
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(b) Type of Option. Each Option shall be designated in the Option Agreement as either
an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such
designations, to the extent that the aggregate Fair Market Value of Shares with respect to which
Options designated as Incentive Stock Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company or any Parent or Subsidiary) exceeds
$100,000, such excess Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5(b), Incentive Stock Options shall be taken into account in the order in which they were
granted, and the Fair Market Value of the Shares subject to an Incentive Stock Option shall be
determined as of the date of the grant of such Option.
(c) At-Will Relationship. The Plan shall not confer upon the holder of any Option or
Stock Purchase Right any right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any way with such holders right or the
Companys right to terminate his or her employment or consulting relationship at any time, with or
without cause.
6. Term of Plan. The Plan shall become effective upon its adoption by the Board. It
shall continue in effect for a term of ten years unless sooner terminated under Section 15 of the
Plan.
7. Term of Option. The term of each Option shall be the term stated in the Option
Agreement; provided, however, that the term shall be no more than ten years from the date of grant
thereof or such shorter term as may be provided in the Option Agreement. However, in the case of
an Incentive Stock Option granted to an Optionee who, at the time the Option is granted, owns stock
representing more than 10% of the total combined voting power of all classes of stock of the
Company or any Parent or Subsidiary, the term of the Option shall be five years from the date of
grant thereof or such shorter term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued pursuant to exercise of an Option
shall be such price as is determined by the Board and set forth in the Option Agreement, but shall
be subject to the following:
(i) In the case of an Incentive Stock Option that is:
(A) granted to an Employee who, at the time of the grant of such Incentive Stock Option, owns
stock representing more than 10% of the total combined voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no less than 110% of the
Fair Market Value per Share on the date of grant.
(B) granted to any other Employee, the per Share exercise price shall be no less than 100% of
the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option that is intended to qualify as
performance-based compensation under Section 162(m) of the Code and is granted on
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or after the date, if ever, on which the Common Stock becomes a Listed Security, the per Share
exercise price shall be no less than 100% of the Fair Market Value on the date of grant; and
(iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price
other than as required above pursuant to a merger or other corporate transaction.
(b) The consideration to be paid for the Shares to be issued upon exercise of an Option,
including the method of payment, shall be determined by the Administrator (and, in the case of an
Incentive Stock Option, shall be determined at the time of grant) and may consist entirely of (1)
cash, (2) check, (3) promissory note, (4) cancellation of indebtedness, (5) other Shares that (x)
in the case of Shares acquired upon exercise of an Option, have been owned by the Optionee for more
than six months on the date of surrender or such other period as may be required to avoid a charge
to the Companys earnings, and (y) have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which such Option shall be exercised, (6)
authorization for the Company to retain from the total number of Shares as to which the Option is
exercised that number of Shares having a Fair Market Value on the date of exercise equal to the
exercise price for the total number of Shares as to which the Option is exercised, (7) delivery of
a properly executed exercise notice together with such other documentation as the Administrator and
the broker, if applicable, shall require to effect an exercise of the Option and delivery to the
Company of the sale or loan proceeds required to pay the exercise price and any applicable income
or employment taxes, (8) delivery of an irrevocable subscription agreement for the Shares that
irrevocably obligates the option holder to take and pay for the Shares not more than twelve months
after the date of delivery of the subscription agreement, (9) any combination of the foregoing
methods of payment, or (10) such other consideration and method of payment for the issuance of
Shares to the extent permitted under the Applicable Laws. In making its determination as to the
type of consideration to accept, the Administrator shall consider if acceptance of such
consideration may be reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder
shall be exercisable at such times and under such conditions as determined by the Administrator and
reflected in the Option Agreement, which may include vesting requirements and/or performance
criteria with respect to the Company and/or the Optionee. In the event that any of the Shares
issued upon exercise of an Option (which exercise occurs prior to the date, if any, upon which the
Common Stock becomes a Listed Security) should be subject to a right of repurchase in the Companys
favor, which will lapse according to the terms approved by the Administrator. The Administrator
shall have the discretion to determine whether and to what extent the vesting of Options shall be
tolled during any leave of absence.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when written notice of such exercise has been given to the
Company in accordance with the terms of the Option by the person entitled to exercise the Option
and the Company has received full payment for the Shares with respect to
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which the Option is exercised. Full payment may, as authorized by the Administrator, consist
of any consideration and method of payment allowable under Section 8(b) of the Plan. Until the
issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect to the Optioned
Stock, not withstanding the exercise of the Option. The Company shall issue (or cause to be
issued) such stock certificate promptly upon exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 12 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the number of Shares that
thereafter may be available, both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship. Subject to Section 9(c)
below, in the event of termination of an Optionees Continuous Status as an Employee or Consultant
with the Company, such Optionee may, but only within three months (or such other period of time not
less than 30 days as is determined by the Administrator, with such determination in the case of an
Incentive Stock Option being made at the time of grant of the Option and not exceeding three
months) after the date of such termination (but in no event later than the expiration date of the
term of such Option as set forth in the Option Agreement), exercise his or her Option to the extent
that the Optionee was entitled to exercise it at the date of such termination. To the extent that
the Optionee was not entitled to exercise the Option at the date of such termination, or if the
Optionee does not exercise such Option to the extent so entitled within the time specified herein,
the Option shall terminate and the Optioned Stock underlying the unexercised portion of the Option
shall revert to the Plan. No termination shall be deemed to occur and this Section 9(b) shall not
apply if (i) the Optionee is a Consultant who becomes an Employee, or (ii) the Optionee is an
Employee who becomes a Consultant.
(c) Disability of Optionee.
(i) Notwithstanding Section 9(b) above, in the event of termination of an Optionees
Continuous Status as an Employee or Consultant as a result of his or her total and permanent
disability (within the meaning of Section 22(e)(3) of the Code), such Optionee may, but only within
twelve months from the date of such termination (but in no event later than the expiration date of
the term of such Option as set forth in the Option Agreement), exercise the Option to the extent
otherwise entitled to exercise it at the date of such termination. To the extent that the Optionee
was not entitled to exercise the Option at the date of termination, or if the Optionee does not
exercise such Option to the extent so entitled within the time specified herein, the Option shall
terminate and the Optioned Stock underlying the unexercised portion of the Option shall revert to
the Plan.
(ii) In the event of termination of an Optionees Continuous Status as an Employee or
Consultant as a result of a disability which does not fall within the meaning of total and
permanent disability (as set forth in Section 22(e)(3) of the Code), such Optionee may, but only
within six months from the date of such termination (but in no event later than the expiration date
of the term of such Option as set forth in the Option Agreement), exercise the
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Option to the extent otherwise entitled to exercise it at the date of such termination.
However, to the extent that such Optionee fails to exercise an Option which is an Incentive Stock
Option (within the meaning of Section 422 of the Code) within three months of the date of such
termination, the Option will not qualify for Incentive Stock Option treatment under the Code. To
the extent that the Optionee was not entitled to exercise the Option at the date of termination, or
if the Optionee does not exercise such Option to the extent so entitled within six months from the
date of termination, the Option shall terminate and the Optioned Stock underlying the unexercised
portion of the Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee during the period of
Continuous Status as an Employee or Consultant since the date of grant of the Option, or within 30
days following termination of the Optionees Continuous Status as an Employee or Consultant, the
Option may be exercised, at any time within twelve months following the date of death (but in no
event later than the expiration date of the term of such Option as set forth in the Option
Agreement), by such Optionees estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent of the right to exercise that had accrued at the
date of death or, if earlier, the date of termination of the Optionees Continuous Status as an
Employee or Consultant. To the extent that the Optionee was not entitled to exercise the Option at
the date of death or termination, as the case may be, or if the Optionee does not exercise such
Option to the extent so entitled within the time specified herein, the Option shall terminate and
the Optioned Stock underlying the unexercised portion of the Option shall revert to the Plan.
(e) Extension of Exercise Period. The Administrator shall have full power and
authority to extend the period of time for which an Option is to remain exercisable following
termination of an Optionees Continuous Status as an Employee or Consultant from the periods set
forth in Sections 10(b), 10(c) and 10(d) above or in the Option Agreement to such greater time as
the Board shall deem appropriate, provided, that in no event shall such option be exercisable later
than the date of expiration of the term of such Option as set forth in the Option Agreement.
(f) Rule 16b-3. Options granted to Reporting Persons shall comply with Rule 16b-3 and
shall contain such additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption for Plan transactions.
(g) Buy-Out Provisions. The Administrator may at any time offer to buy out for a
payment in cash or Shares an Option previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Optionee at the time such offer is made.
10. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued either alone, in addition
to, or in tandem with other awards granted under the Plan and/or cash awards made outside of the
Plan. After the Administrator determines that it will offer Stock Purchase Rights under the Plan,
it shall advise the offeree in writing of the terms, conditions and restrictions related to the
offer, including the number of Shares that such person shall be entitled to purchase,
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the price to be paid (which shall be as determined by the Administrator, subject to Applicable
Laws, including any applicable securities laws), and the time within which such person must accept
such offer, which shall in no event exceed 30 days from the date upon which the Administrator made
the determination to grant the Stock Purchase Right. The offer shall be accepted by execution of a
Restricted Stock Purchase Agreement in the form determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise, the Restricted
Stock Purchase Agreement shall grant the Company a repurchase option exercisable upon the voluntary
or involuntary termination of the purchasers employment with the Company for any reason (including
death or disability). The purchase price for Shares repurchased pursuant to the Restricted Stock
Purchase Agreement shall be the original purchase price paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The repurchase option shall lapse
at such rate as the Administrator may determine.
(c) Other Provisions. The Restricted Stock Purchase Agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be determined by the
Administrator in its sole discretion. In addition, the provisions of Restricted Stock Purchase
Agreements need not be the same with respect to each purchaser.
(d) Rights as a Shareholder. Once the Stock Purchase Right is exercised, the
purchaser shall have the rights equivalent to those of a shareholder, and shall be a shareholder
when his or her purchase is entered upon the records of the duly authorized transfer agent of the
Company. No adjustment will be made for a dividend or other right for which the record date is
prior to the date the Stock Purchase Right is exercised, except as provided in Section 12 of the
Plan.
11. Stock Withholding to Satisfy Withholding Tax Obligations. At the discretion of
the Administrator, Optionees may satisfy withholding obligations as provided in this paragraph.
When an Optionee incurs tax liability in connection with an Option or Stock Purchase Right, which
tax liability is subject to tax withholding under applicable tax laws, and the Optionee is
obligated to pay the Company an amount required to be withheld under applicable tax laws, the
Optionee may satisfy the minimum withholding tax obligation by one or some combination of the
following methods: (a) by cash or check payment, (b) out of the Optionees current compensation,
(c) if permitted by the Administrator, in its discretion, by surrendering to the Company Shares
that (i) in the case of Shares previously acquired from the Company, have been owned by the
Optionee for more than six months on the date of surrender, and (ii) have a Fair Market Value on
the date of surrender equal to or less than the amount required to be withheld, or (d) by electing
to have the Company withhold from the Shares to be issued upon exercise of the Option, or the
Shares to be issued in connection with the Stock Purchase Right, if any, that number of Shares
having a Fair Market Value equal to the amount required to be withheld. For this purpose, the Fair
Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to
be withheld is to be determined (the Tax Date).
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Any surrender by a Reporting Person of previously owned Shares to satisfy tax withholding
obligations arising upon exercise of this Option must comply with the applicable provisions of Rule
16b-3.
All elections by an Optionee to have Shares withheld to satisfy tax withholding obligations
shall be made in writing in a form acceptable to the Administrator and shall be subject to the
following restrictions:
(a) the election must be made on or prior to the applicable Tax Date;
(b) once made, the election shall be irrevocable as to the particular Shares of the Option or
Stock Purchase Right as to which the election is made; and
(c) all elections shall be subject to the consent or disapproval of the Administrator.
In the event the election to have Shares withheld is made by an Optionee and the Tax Date is
deferred under Section 83 of the Code because no election is filed under Section 83(b) of the Code,
the Optionee shall receive the full number of Shares with respect to which the Option or Stock
Purchase Right is exercised but such Optionee shall be unconditionally obligated to tender back to
the Company the proper number of Shares on the Tax Date.
12. Adjustments Upon Changes in Capitalization, Merger or Certain Other Transactions.
(a) Changes in Capitalization. Subject to any required action by the shareholders of
the Company, the number of shares of Common Stock covered by each outstanding Option or Stock
Purchase Right, and the number of shares of Common Stock that have been authorized for issuance
under the Plan but as to which no Options or Stock Purchase Rights have yet been granted or that
have been returned to the Plan upon cancellation or expiration of an Option or Stock Purchase
Right, as well as the price per share of Common Stock covered by each such outstanding Option or
Stock Purchase Right, shall be proportionately adjusted for any increase or decrease in the number
of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination, recapitalization or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been effected without receipt of consideration. Such adjustment
shall be made by the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price of shares of Common
Stock subject to an Option or Stock Purchase Right.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Board shall notify the Optionee at least 15 days prior to such
12
proposed action. To the extent it has not been previously exercised, the Option or Stock
Purchase Right will terminate immediately prior to the consummation of such proposed action.
(c) Change in Control. In the event of a Change in Control, each outstanding Option
or Stock Purchase Right shall be assumed or an equivalent option or right shall be substituted by
the successor corporation or a Parent or Subsidiary of such successor corporation, unless such
successor corporation does not agree to assume the outstanding Options or Stock Purchase Rights or
to substitute equivalent options or rights, in which case such Options or Stock Purchase Rights
shall terminate upon the consummation of the transaction.
For purposes of this Section 12(c), an Option or a Stock Purchase Right shall be considered
assumed, without limitation, if, at the time of issuance of the stock or other consideration upon
such Change in Control, each holder of an Option or Stock Purchase Right would be entitled to
receive upon exercise of the Option or Stock Purchase Right the same number and kind of shares of
stock or the same amount of property, cash or securities as such holder would have been entitled to
receive upon the occurrence of the transaction if the holder had been, immediately prior to such
transaction, the holder of the number of Shares of Common Stock covered by the Option or the Stock
Purchase Right at such time (after giving effect to any adjustments in the number of Shares covered
by the Option or Stock Purchase Right as provided for in this Section 12); provided however that if
such consideration received in the Change in Control was not solely common stock of the successor
corporation or its Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon exercise of the Option to be solely common stock
of the successor corporation or its Parent equal to the Fair Market Value of the per Share
consideration received by holders of Common Stock in the transaction.
(d) Certain Distributions. In the event of any distribution to the Companys
shareholders of securities of any other entity or other assets (other than dividends payable in
cash or stock of the Company) without receipt of consideration by the Company, the Administrator
may, in its discretion, appropriately adjust the price per Share of Common Stock covered by each
outstanding Option or Stock Purchase Right to reflect the effect of such distribution.
13. Non-Transferability of Options and Stock Purchase Rights. Options and Stock
Purchase Rights may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by will or by the laws of descent or distribution and may be exercised or
purchased during the lifetime of the Optionee or the holder of Stock Purchase Rights only by the
Optionee or holder of Stock Purchase Rights; provided however that, after the date, if any, upon
which the Common Stock becomes a Listed Security, the Administrator may in its discretion grant
transferable Nonstatutory Stock Options pursuant to Option Agreements specifying (i) the manner in
which such Nonstatutory Stock Options are transferable and (ii) that any such transfer shall be
subject to the Applicable Laws. The designation of a beneficiary by an Optionee will not
constitute a transfer. An Option or Stock Purchase Right may be exercised, during the lifetime of
the holder of the Option or Stock Purchase Right, only by such holder or a transferee permitted by
this Section 13.
14. Time of Granting Options and Stock Purchase Rights. The date of grant of an
Option or Stock Purchase Right shall, for all purposes, be the date on which the Administrator
13
makes the determination granting such Option or Stock Purchase Right, or such other date as is
determined by the Board; provided, however, that in the case of any Incentive Stock Option, the
grant date shall be the later of the date on which the Administrator makes the determination
granting such Incentive Stock Option or the date of commencement of the Optionees employment
relationship with the Company. Notice of the determination shall be given to each Employee or
Consultant to whom an Option or Stock Purchase Right is so granted within a reasonable time after
the date of such grant.
15. Amendment and Termination of the Plan.
(a) Authority to Amend or Terminate. The Board may at any time amend, alter, suspend
or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made
that would impair the rights of any Optionee under any grant theretofore made, without his or her
consent. In addition, to the extent necessary and desirable to comply with Rule 16b-3 or with
Section 422 of the Code (or any other applicable law or regulation, including the requirements of
any Stock Exchange), the Company shall obtain shareholder approval of any Plan amendment in such a
manner and to such a degree as required.
(b) Effect of Amendment or Termination. No amendment or termination of the Plan shall
adversely affect Options already granted, unless mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing and signed by the Optionee and the Company.
16. Conditions Upon Issuance of Shares. Shares shall not be issued pursuant to the
exercise of an Option or Stock Purchase Right unless the exercise of such Option or Stock Purchase
Right and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any Stock
Exchange.
As a condition to the exercise of an Option, the Company may require the person exercising
such Option to represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation is required by law.
17. Reservation of Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan. The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Companys counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite authority shall not
have been obtained.
18. Agreements. Options and Stock Purchase Rights shall be evidenced by written
Option Agreements and Restricted Stock Purchase Agreements, respectively, in such form(s) as the
Administrator shall approve from time to time.
14
19. Shareholder Approval. Continuance of the Plan shall be subject to approval by the
shareholders of the Company within twelve months before or after the date the Plan is adopted.
Such shareholder approval shall be obtained in the degree and manner required under applicable
state and federal law and the rules of any Stock Exchange upon which the Common Stock is listed.
All Options and Stock Purchase Rights issued under the Plan shall become void in the event such
approval is not obtained.
20. Information and Documents to Optionees and Purchasers.
(a) The Company shall provide financial statements at least annually to each Optionee and to
each individual who acquired Shares pursuant to the Plan, during the period such Optionee or
purchaser has one or more Options or Stock Purchase Rights outstanding, and in the case of an
individual who acquired Shares pursuant to the Plan, during the period such individual owns such
Shares. The Company shall not be required to provide such information if (i) the issuance of
Options or Stock Purchase Rights under the Plan is limited to key employees whose duties in
connection with the Company assure their access to equivalent information or (ii) the Plan or any
agreement complies with all conditions of Rule 701 of the Securities Act of 1933, as amended;
provided that for purposes of determining such compliance, any registered domestic partner shall be
considered a family member as that term is defined in Rule 701. The requirements in this Section
20(a) shall only apply to individuals or entities whose Option or Restricted Stock is issued in
reliance on Section 25102(o) of the California Corporations Code.
(b) At the time of issuance of any securities under the Plan, the Company shall provide to the
Optionee or the purchaser a copy of the Plan and any agreement(s) pursuant to which securities
granted under the Plan are issued.
15
IRONPLANET, INC.
1999 STOCK PLAN
NOTICE OF STOCK OPTION GRANT
«Optionee»
You have been granted an option to purchase Common Stock of IronPlanet, Inc. (the
Company) as follows:
Date of Grant: | «GrantDate» | |||
Exercise Price per Share: | $«ExericePrice» | |||
Total Number of Shares Granted: | «NoofShares» | |||
Total Exercise Price: | $«TotalExercisePrice» | |||
Type of Option: | [Incentive Stock Option][Nonstatutory Stock Option] | |||
Expiration Date: | «ExpirDate» | |||
Vesting Commencement Date: | «VestingCommenceDate» | |||
Vesting/Exercise Schedule: | [So long as your employment or consulting relationship with the Company continues, the Shares underlying this Option shall vest and become exercisable in accordance with the following schedule: 25% of the Shares subject to the Option shall vest and become exercisable on the twelfth month anniversary of the Vesting Commencement Date and 1/48th of the total number of Shares subject to the Option shall vest and become exercisable each month thereafter.][Performance-based vesting to the extent approved by Board or Compensation Committee.] |
Termination Period: | This Option may be exercised for 90 days after termination of employment or consulting relationship except as set out in Section 5 of the Stock Option Agreement (but in no event later than the Expiration Date). Optionee is responsible for keeping track of these exercise periods following termination for any reason of his or her service relationship with the Company. The Company will not provide further notice of such periods. | |||
Transferability: | This Option may not be transferred. |
By your signature and the signature of the Companys representative below, you and the Company
agree that this option is granted under and governed by the terms and conditions of the 1999 Stock
Plan and the Stock Option Agreement, both of which are attached and made a part of this document.
In addition, you agree and acknowledge that your rights to any Shares underlying the Option
will be earned only as you provide services to the Company over time, that the grant of the Option
is not as consideration for services you rendered to the Company prior to your Vesting Commencement
Date, and that nothing in this Notice or the attached documents confers upon you any right to
continue your employment or consulting relationship with the Company for any period of time, nor
does it interfere in any way with your right or the Companys right to terminate that relationship
at any time, for any reason, with or without cause.
Also, the Exercise Price Per Share has been set at the fair market value of the Shares on the
Date of Grant in good faith compliance with the applicable guidance issued by the IRS under Section
409A of the Code in order to avoid the Option being treated as deferred compensation under Section
409A of the Code. However, there is no guarantee that the IRS will agree with the valuation and,
by signing below, you agree and acknowledge that the Company shall not be held liable for any
applicable costs, taxes, or penalties associated with the Option if, in fact, the IRS were to
determine that the Option constitutes deferred compensation under Section 409A of the Code. You
should consult with your own tax advisor concerning the tax consequences of such a determination by
the IRS
IRONPLANET, INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
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IRONPLANET, INC.
1999 STOCK PLAN
STOCK OPTION AGREEMENT
1. Grant of Option. IronPlanet, Inc., a Delaware corporation (the Company),
hereby grants to «Optionee» (Optionee), an option (the Option) to purchase the
total number of shares of Common Stock (the Shares) set forth in the Notice of Stock
Option Grant (the Notice), at the exercise price per Share set forth in the Notice (the
Exercise Price) subject to the terms, definitions and provisions of the 1999 Stock Plan
(the Plan) adopted by the Company, which is incorporated in this Agreement by reference.
Unless otherwise defined in this Agreement, the terms used in this Agreement shall have the
meanings defined in the Plan.
2. Designation of Option. This Option is intended to be an Incentive Stock Option as
defined in Section 422 of the Code only to the extent so designated in the Notice, and to the
extent it is not so designated or to the extent the Option does not qualify as an Incentive Stock
Option, it is intended to be a Nonstatutory Stock Option.
Notwithstanding the above, if designated as an Incentive Stock Option, in the event that the
Shares subject to this Option (and all other Incentive Stock Options granted to Optionee by the
Company or any Parent or Subsidiary, including under other plans of the Company) that first become
exercisable in any calendar year have an aggregate fair market value (determined for each Share as
of the date of grant of the option covering such Share) in excess of $100,000, the Shares in excess
of $100,000 shall be treated as subject to a Nonstatutory Stock Option, in accordance with Section
5(c) of the Plan.
3. Exercise of Option. This Option shall be exercisable during its term in accordance
with the Vesting/Exercise Schedule set out in the Notice and with the provisions of Section 10 of
the Plan as follows:
(a) Right to Exercise.
(i) This Option may not be exercised for a fraction of a share.
(ii) In the event of Optionees death, disability or other termination of employment, the
exercisability of the Option is governed by Section 5 below, subject to the limitations contained
in this Section 3.
(iii) In no event may this Option be exercised after the Expiration Date of the Option as set
forth in the Notice.
(b) Method of Exercise.
(i) This Option shall be exercisable by execution and delivery of the Exercise Notice and
Restricted Stock Purchase Agreement attached hereto as Exhibit A (the Exercise
Agreement) or of any other form of written notice approved for such purpose by the Company
which shall state Optionees election to exercise the Option, the number of Shares in respect of
which the Option is being exercised, and such other representations and agreements as to the
holders investment intent with respect to such Shares as may be required by the Company pursuant
to the provisions of the Plan. Such written notice shall be signed by Optionee and shall be
delivered to the Company by such means as are determined by the Plan Administrator in its
discretion to constitute adequate delivery. The written notice shall be accompanied by payment of
the Exercise Price. This Option shall be deemed to be exercised upon receipt by the Company of
such written notice accompanied by the Exercise Price.
(ii) As a condition to the exercise of this Option and as further set forth in Section 12 of
the Plan, Optionee agrees to make adequate provision for federal, state or other tax withholding
obligations, if any, which arise upon the vesting or exercise of the Option, or disposition of
Shares, whether by withholding, direct payment to the Company, or otherwise.
(iii) The Company is not obligated, and will have no liability for failure, to issue or
deliver any Shares upon exercise of the Option unless such issuance or delivery would comply with
the Applicable Laws, with such compliance determined by the Company in consultation with its legal
counsel. This Option may not be exercised until such time as the Plan has been approved by the
stockholders of the Company, or if the issuance of such Shares upon such exercise or the method of
payment of consideration for such shares would constitute a violation of any applicable federal or
state securities or other law or regulation, including any rule under Part 221 of Title 12 of the
Code of Federal Regulations as promulgated by the Federal Reserve Board. As a condition to the
exercise of this Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by the Applicable Laws. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to Optionee on the date on which the Option is
exercised with respect to such Shares.
4. Method of Payment. Payment of the Exercise Price shall be by any of the following,
or a combination of the following, at the election of Optionee:
(a) cash or check;
(b) prior to the date, if any, upon which the Common Stock becomes a Listed Security, by
surrender of other shares of Common Stock of the Company that have an aggregate Fair Market Value
on the date of surrender equal to the Exercise Price of the Shares as to which the Option is being
exercised. In the case of shares acquired directly or indirectly from the Company, such shares
must have been owned by Optionee for more than six (6) months on the date of surrender (or such
other period of time as is necessary to avoid the Companys incurring adverse accounting charges);
or
-2-
(c) following the date, if any, upon which the Common Stock is a Listed Security, delivery of
a properly executed exercise notice together with irrevocable instructions to a broker approved by
the Company to deliver promptly to the Company the amount of sale or loan proceeds required to pay
the exercise price.
5. Termination of Relationship. Following the date of termination of Optionees
Continuous Service Status for any reason (the Termination Date), Optionee may exercise
the Option only as set forth in the Notice and this Section 5. To the extent that Optionee is not
entitled to exercise this Option as of the Termination Date, or if Optionee does not exercise this
Option within the Termination Period set forth in the Notice or the termination periods set forth
below, the Option shall terminate in its entirety. In no event, may any Option be exercised after
the Expiration Date of the Option as set forth in the Notice.
(a) Termination. In the event of termination of Optionees Continuous Service Status
other than as a result of Optionees disability or death, Optionee may, to the extent otherwise so
entitled at the date of such termination (the Termination Date), exercise this Option
during the Termination Period set forth in the Notice.
(b) Other Terminations. In connection with any termination other than a termination
covered by Section 5(a), Optionee may exercise the Option only as described below:
(i) Termination upon Disability of Optionee. In the event of termination of
Optionees Continuous Service Status as a result of Optionees disability, Optionee may, but only
within twelve months from the Termination Date, exercise this Option to the extent Optionee was
entitled to exercise it as of such Termination Date.
(ii) Death of Optionee. In the event of the death of Optionee (a) during the term of
this Option and while an Employee or Consultant of the Company and having been in Continuous
Service Status since the date of grant of the Option, or (b) within thirty (30) days after
Optionees Termination Date, the Option may be exercised at any time within six (6) months
following the date of death by Optionees estate or by a person who acquired the right to exercise
the Option by bequest or inheritance, but only to the extent Optionee was entitled to exercise the
Option as of the Termination Date.
6. Non-Transferability of Option. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by him or her. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors and assigns of Optionee.
7. Tax Consequences. Below is a brief summary as of the date of this Option of
certain of the federal tax consequences of exercise of this Option and disposition of the Shares
under the laws in effect as of the Date of Grant. THIS SUMMARY IS 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) Incentive Stock Option.
-3-
(i) Tax Treatment upon Exercise and Sale of Shares. If this Option qualifies as an
Incentive Stock Option, there will be no regular federal income tax liability upon the exercise of
the Option, although the excess, if any, of the fair market value of the Shares on the date of
exercise over the Exercise Price will be treated as an adjustment to the alternative minimum tax
for federal tax purposes and may subject Optionee to the alternative minimum tax in the year of
exercise. If Shares issued upon exercise of an Incentive Stock Option are held for at least one
year after exercise and are disposed of at least two years after the Option grant date, any gain
realized on disposition of the Shares will also be treated as long-term capital gain for federal
income tax purposes. If Shares issued upon exercise of an Incentive Stock Option are disposed of
within such one-year period or within two years after the Option grant date, any gain realized on
such disposition will be treated as compensation income (taxable at ordinary income rates) to the
extent of the difference between the Exercise Price and the lesser of (i) the fair market value of
the Shares on the date of exercise, or (ii) the sale price of the Shares.
(ii) Notice of Disqualifying Dispositions. With respect to any Shares issued upon
exercise of an Incentive Stock Option, if Optionee sells or otherwise disposes of such Shares on or
before the later of (i) the date two years after the Option grant date, or (ii) the date one year
after the date of exercise, Optionee shall immediately notify the Company in writing of such
disposition. Optionee acknowledges and agrees that he or she may be subject to income tax
withholding by the Company on the compensation income recognized by Optionee from the early
disposition by payment in cash or out of the current earnings paid to Optionee.
(b) Nonstatutory Stock Option. If this Option does not qualify as an Incentive Stock
Option, there may be a regular federal (and state) income tax liability upon the exercise of the
Option. 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. If Optionee is an Employee, the Company will be required to
withhold from Optionees 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.
If Shares issued upon exercise of a Nonstatutory Stock Option are held for at least one year, any
gain realized on disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes.
8. Lock-Up Agreement. In connection with the initial public offering of the Companys
securities and upon request of the Company or the underwriters managing any underwritten offering
of the Companys securities, Optionee hereby agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any securities of the Company however
and whenever acquired (other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for such period of time (not to
exceed 180 days) from the effective date of such registration as may be requested by the Company or
such managing underwriters and to execute an agreement reflecting the foregoing as may be requested
by the underwriters at the time of the public offering.
-4-
9. Effect of Agreement. Optionee acknowledges receipt of a copy of the Plan and
represents that he or she is familiar with the terms and provisions thereof (and has had an
opportunity to consult counsel regarding the Option terms), and hereby accepts this Option and
agrees to be bound by its contractual terms as set forth herein and in the Plan. Optionee hereby
agrees to accept as binding, conclusive and final all decisions and interpretations of the Plan
Administrator regarding any questions relating to the Option. In the event of a conflict between
the terms and provisions of the Plan and the terms and provisions of the Notice and this Agreement,
the Plan terms and provisions shall prevail. The Option, including the Plan, constitutes the
entire agreement between Optionee and the Company on the subject matter hereof and supersedes all
proposals, written or oral, and all other communications between the parties relating to such
subject matter.
[Signature Page Follows]
-5-
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one document.
«Optionee» | IRONPLANET, INC. | |||||||
By: | ||||||||
Name: | ||||||||
Dated:
|
Title: | |||||||
-6-
EXHIBIT A
IRONPLANET, INC.
1999 STOCK PLAN
EXERCISE NOTICE AND RESTRICTED STOCK PURCHASE AGREEMENT
This Agreement (Agreement) is made as of , by and between
IronPlanet, Inc., a Delaware corporation (the Company), and «Optionee»
(Purchaser). To the extent any capitalized terms used in this Agreement are not defined,
they shall have the meaning ascribed to them in the 1999 Stock Plan.
1. Exercise of Option. Subject to the terms and conditions hereof, Purchaser hereby
elects to exercise his or her option to purchase
shares of the Common Stock (the
Shares) of the Company under and pursuant to the Companys 1999 Stock Plan (the
Plan) and the Stock Option Agreement dated «GrantDate» (the Option Agreement).
The purchase price for the Shares shall be $«ExericePrice» per Share for a total purchase price of
$ . The term Shares refers to the purchased Shares and all securities
received in replacement of the Shares or as stock dividends or splits, all securities received in
replacement of the Shares in a recapitalization, merger, reorganization, exchange or the like, and
all new, substituted or additional securities or other properties to which Purchaser is entitled by
reason of Purchasers ownership of the Shares.
2. Time and Place of Exercise. The purchase and sale of the Shares under this
Agreement shall occur at the principal office of the Company simultaneously with the execution and
delivery of this Agreement in accordance with the provisions of Section 2(b) of the Option
Agreement. On such date, the Company will deliver to Purchaser a certificate representing the
Shares to be purchased by Purchaser (which shall be issued in Purchasers name) against payment of
the exercise price therefor by Purchaser by (a) check made payable to the Company, (b) cancellation
of indebtedness of the Company to Purchaser, (c) delivery of shares of the Common Stock of the
Company in accordance with Section 3 of the Option Agreement, or (d) by a combination of the
foregoing.
3. Limitations on Transfer. In addition to any other limitation on transfer created
by applicable securities laws, Purchaser shall not assign, encumber or dispose of any interest in
the Shares except in compliance with the provisions below and applicable securities laws.
(a) Right of First Refusal. Before any Shares held by Purchaser or any transferee of
Purchaser (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 3(a) (the Right of First Refusal).
(i) Notice of Proposed Transfer. The Holder of the Shares shall deliver to the
Company a written notice (the Notice) stating: (i) the Holders 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 terms and conditions of each proposed sale or transfer. The
Holder shall offer the Shares at the same price (the Offered Price) and upon the same
terms (or terms as similar as reasonably possible) to the Company or its assignee(s).
(ii) Exercise of Right of First Refusal. At any time within thirty (30) 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 (iii) below.
(iii) Purchase Price. The purchase price (Purchase Price) for the Shares
purchased by the Company or its assignee(s) under this Section 3(a) 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 of Directors of the Company in good faith.
(iv) 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, or by any combination thereof within 30 days after receipt of the Notice
or in the manner and at the times set forth in the Notice.
(v) Holders 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 3(a), 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 60 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 3 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, or if the Holder proposes
to change the price or other terms to make them more favorable to the Proposed Transferee, 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.
(vi) Exception for Certain Family Transfers. Anything to the contrary contained in
this Section 3(a) notwithstanding, the transfer of any or all of the Shares during Purchasers
lifetime or on Purchasers death by will or intestacy to Purchasers Immediate Family or a trust
for the benefit of Purchasers Immediate Family shall be exempt from the provisions of this Section
3(a). 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
Section, and there shall be no further transfer of such Shares except in accordance with the terms
of this Section 3.
-2-
(b) Involuntary Transfer.
(i) Companys Right to Purchase upon Involuntary Transfer. In the event, at any time
after the date of this Agreement, of any transfer by operation of law or other involuntary transfer
(including death or divorce, but excluding a transfer to Immediate Family as set forth in Section
3(a)(vi) above) of all or a portion of the Shares by the record holder thereof, the Company shall
have an option to purchase all of the Shares transferred at the greater of the purchase price paid
by Purchaser pursuant to this Agreement or the Fair Market Value of the Shares on the date of
transfer. Upon such a transfer, the person acquiring the Shares shall promptly notify the
Secretary of the Company of such transfer. The right to purchase such Shares shall be provided to
the Company for a period of thirty (30) days following receipt by the Company of written notice by
the person acquiring the Shares.
(ii) Price for Involuntary Transfer. With respect to any stock to be transferred
pursuant to Section 3(b)(i), the price per Share shall be a price set by the Board of Directors of
the Company that will reflect the current value of the stock in terms of present earnings and
future prospects of the Company. The Company shall notify Purchaser or his or her executor of the
price so determined within thirty (30) days after receipt by it of written notice of the transfer
or proposed transfer of Shares. However, if the Purchaser does not agree with the valuation as
determined by the Board of Directors of the Company, the Purchaser shall be entitled to have the
valuation determined by an independent appraiser to be mutually agreed upon by the Company and the
Purchaser and whose fees shall be borne equally by the Company and the Purchaser.
(c) Assignment. The right of the Company to purchase any part of the Shares may be
assigned in whole or in part to any shareholder or shareholders of the Company or other persons or
organizations.
(e) Restrictions Binding on Transferees. All transferees of Shares or any interest
therein will receive and hold such Shares or interest subject to the provisions of this Agreement.
Any sale or transfer of the Companys Shares shall be void unless the provisions of this Agreement
are satisfied.
(f) Termination of Rights. The right of first refusal granted the Company by Section
3(a) above and the option to repurchase the Shares in the event of an involuntary transfer granted
the Company by Section 3(b) above shall terminate upon 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
(the Securities Act). Upon termination of the right of first refusal described in
Section 3(a) above, a new certificate or certificates representing the Shares not repurchased shall
be issued, on request, without the legend referred to in Section 6(a)(ii) herein and delivered to
Purchaser.
4. Investment and Taxation Representations. In connection with the purchase of the
Shares, Purchaser represents to the Company the following:
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(a) Purchaser is aware of the Companys business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and knowledgeable decision
to acquire the Shares. Purchaser is purchasing these securities for investment for his or her 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 or under any applicable provision of state law. Purchaser
does not have any present intention to transfer the Shares to any person or entity.
(b) Purchaser understands that the Shares have not been registered under the Securities Act by
reason of a specific exemption therefrom, which exemption depends upon, among other things, the
bona fide nature of Purchasers investment intent as expressed herein.
(c) Purchaser further acknowledges and 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. Purchaser further acknowledges and understands that the Company is
under no obligation to register the securities. Purchaser understands that the certificate(s)
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 for the Company.
(d) Purchaser is familiar with the provisions of Rules 144 and 701, each promulgated under the
Securities Act, which, in substance, permit limited public resale of restricted securities
acquired, directly or indirectly, from the issuer of the securities (or from an affiliate of such
issuer), in a non-public offering subject to the satisfaction of certain conditions. Purchaser
understands that the Company provides no assurances as to whether he or she will be able to resell
any or all of the Shares pursuant to Rule 144 or Rule 701, which rules require, among other things,
that the Company be subject to the reporting requirements of the Securities Exchange Act of 1934,
as amended, that resales of securities take place only after the holder of the Shares has held the
Shares for certain specified time periods, and under certain circumstances, that resales of
securities be limited in volume and take place only pursuant to brokered transactions.
Notwithstanding this paragraph (d), Purchaser acknowledges and agrees to the restrictions set forth
in paragraph (e) below.
(e) Purchaser further understands that in the event all of the applicable requirements of Rule
144 or 701 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.
(f) Purchaser understands that Purchaser may suffer adverse tax consequences as a result of
Purchasers purchase or disposition of the Shares. Purchaser represents that Purchaser has
consulted any tax consultants Purchaser deems advisable in
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connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for any tax advice.
5. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. The certificate or certificates representing the Shares shall bear the
following legends (as well as any legends required by applicable state and federal corporate and
securities laws):
(i) | THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933. | ||
(ii) | THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. |
(b) Stop-Transfer Notices. Purchaser 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 purchaser or other transferee to whom such Shares shall have been so transferred.
6. No Employment Rights. Nothing in this Agreement shall affect in any manner
whatsoever the right or power of the Company, or a parent or subsidiary of the Company, to
terminate Purchasers employment or consulting relationship, for any reason, with or without cause.
7. Lock-Up Agreement. In connection with the initial public offering of the Companys
securities and upon request of the Company or the underwriters managing any
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underwritten offering
of the Companys securities, Purchaser agrees not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any securities of the Company however or
whenever acquired (other than those included in the registration) without the prior written consent
of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180
days) from the effective date of such registration as may be requested by the Company or such
managing underwriters and to execute an agreement reflecting the foregoing as may be requested by
the underwriters at the time of the public offering.
8. Miscellaneous.
(a) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to principles of
conflicts of law.
(b) Entire Agreement; Enforcement of Rights. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter herein and merges all
prior discussions between them. No modification of or amendment to this Agreement, nor any waiver
of any rights under this Agreement, shall be effective unless in writing signed by the parties to
this Agreement. The failure by either party to enforce any rights under this Agreement shall not
be construed as a waiver of any rights of such party.
(c) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good
faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance
of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance
of the Agreement shall be enforceable in accordance with its terms.
(d) Construction. This Agreement is the result of negotiations between and has been
reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be
construed in favor of or against any one of the parties hereto.
(e) Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient when delivered personally or sent by telegram or fax or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such partys address as set forth below or as
subsequently modified by written notice.
(f) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(g) Successors and Assigns. The rights and benefits of this Agreement shall inure to
the benefit of, and be enforceable by the Companys successors and assigns.
-6-
The rights and
obligations of Purchaser under this Agreement may only be assigned with the prior written consent
of the Company.
(h) California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE
SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE
OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS
EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE.
THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
[Signature Page Follows]
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The parties have executed this Exercise Notice and Restricted Stock Purchase Agreement as of
the date first set forth above.
COMPANY: | ||||||
IRONPLANET, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
PURCHASER: | ||||||
«Optionee» | ||||||
(Signature) | ||||||
(Print Name) | ||||||
Address: | ||||||
I, , spouse of «Optionee», have read and hereby approve the foregoing
Agreement. In consideration of the Companys granting my spouse the right to purchase the Shares
as set forth in the Agreement, I hereby agree to be irrevocably bound by the Agreement and further
agree that any community property or other such interest shall hereby by similarly bound by the
Agreement. I hereby appoint my spouse as my attorney-in-fact with respect to any amendment or
exercise of any rights under the Agreement.
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RECEIPT
The undersigned hereby acknowledges receipt of Certificate No. ___ for shares of
Common Stock of IronPlanet, Inc.
Dated:
|
||||
RECEIPT
IronPlanet, Inc. (the Company) hereby acknowledges receipt of (check as applicable):
A check in the amount of $
The cancellation of indebtedness in the amount of $
Certificate No. ___ representing shares of the Companys
Common Stock with a fair market value of $
given by
«Optionee» as consideration for Certificate No. ___ for ___ shares of Common Stock
of the Company.
Dated:
IRONPLANET, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||