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NEXTCARD, INC.
1997 STOCK PLAN
STOCK PURCHASE RIGHT AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall
have the same defined meanings in this Stock Purchase Right Agreement.
I. NOTICE OF GRANT OF STOCK PURCHASE RIGHT
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The undersigned Grantee has been granted a stock purchase right to
purchase Common Stock of the Company, subject to the terms and conditions of the
Plan and this Stock Purchase Right Agreement, as follows:
Grant Number SP-__
Date of Grant _________________
Vesting Commencement Date _________________
Exercise Price per Share $_________________
Total Number of Shares Granted _________________
Total Exercise Price $_________________
Term/Expiration Date: _________________
Vesting Schedule:
This Stock Purchase Right shall be exercisable, in whole or in part,
according to the following vesting schedule: Twenty-five percent (25%) of the
Shares subject to the Stock Purchase Right shall vest twelve months after the
Vesting Commencement Date, and one thirty-sixth (1/36) of the remainder shall
vest each month thereafter, subject to Grantee's continuing to be a Service
Provider on such dates.
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Termination Period:
This Stock Purchase Right shall be exercisable for three (3) months
after Grantee ceases to be a Service Provider. Upon Grantee's death or
disability, this Stock Purchase Right may be exercised for such longer period as
provided in the Plan. In no event may Grantee exercise this Stock Purchase Right
after the Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Stock Purchase Right. The Plan Administrator of the Company
hereby grants to the Grantee named in the Notice of Grant (the "Grantee"), a
stock purchase right (the "Stock Purchase Right") to purchase the number of
Shares set forth in the Notice of Grant, at the exercise price per Share set
forth in the Notice of Grant (the "Exercise Price"), and subject to the terms
and conditions of the Plan, which is incorporated herein by reference. Subject
to Section 14(c) of the Plan, in the event of a conflict between the terms and
conditions of the Plan and this Stock Purchase Right Agreement, the terms and
conditions of the Plan shall prevail.
2. Exercise of Stock Purchase Right.
(a) Right to Exercise. This Stock Purchase Right shall be
exercisable during its term in accordance with the Vesting Schedule set out in
the Notice of Grant and with the applicable provisions of the Plan and this
Stock Purchase Right Agreement.
(b) Method of Exercise. This Stock Purchase Right shall be
exercisable by delivery of an exercise notice in the form attached as Exhibit A
(the "Exercise Notice") which shall state the election to exercise the Stock
Purchase Right, the number of Shares with respect to which the Stock Purchase
Right is being exercised, and such other representations and agreements as may
be required by the Company. The Exercise Notice shall be accompanied by payment
of the aggregate Exercise Price as to all Exercised Shares. This Stock Purchase
Right shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Stock Purchase Right unless such issuance and such exercise complies with
Applicable laws. Assuming such compliance, for income tax purposes the Shares
shall be considered transferred to the Grantee on the date on which the Stock
Purchase Right is exercised with respect to such Shares.
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3. Grantee's Representations. In the event the Shares have not been
registered under the Securities Act of 1933, as amended, at the time this Stock
Purchase Right is exercised, the Grantee shall, if required by the Company,
concurrently with the exercise of all or any portion of this Stock Purchase
Right, deliver to the Company his or her Investment Representation Statement in
the form attached hereto as Exhibit B.
4. Lock-Up Period. Grantee hereby agrees that, if so requested by the
Company or any representative of the underwriters (the "Managing Underwriter")
in connection with any registration of the offering of any securities of the
Company under the Securities Act, Grantee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period (or such
other period as may be requested in writing by the Managing Underwriter and
agreed to in writing by the Company) (the "Market Standoff Period") following
the effective date of a registration statement of the Company filed under the
Securities Act. The Company may impose stop-transfer instructions with respect
to securities subject to the foregoing restrictions until the end of such Market
Standoff Period.
5. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Grantee:
(a) cash or check;
(b) consideration received by the Company under a formal
cashless exercise program adopted by the Company in connection with the
Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Grantee for more
than six (6) months on the date of surrender, and (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
6. Restrictions on Exercise. This Stock Purchase Right may not be
exercised until such time as the Plan has been approved by the shareholders 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 Law.
7. Non-Transferability of Stock Purchase Right. This Stock Purchase
Right 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 Grantee
only by Grantee. The terms of the Plan and this Stock Purchase Right Agreement
shall be binding upon the executors, administrators, heirs, successors and
assigns of the Grantee.
8. Term of Stock Purchase Right. This Stock Purchase Right may be
exercised only within the term set out in the Notice of Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Stock Purchase Right Agreement.
9. Tax Consequences. The Grantee has reviewed with the Grantee's own
tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions
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contemplated by this Stock Purchase Right Agreement. The Grantee is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Grantee understands that the Grantee (and not
the Company) shall be solely and exclusively responsible for the Grantee's own
tax liability (including without limitation any filings with any federal, state,
local or foreign tax authority that may be necessary or advisable for the
Grantee to make) that may arise as a result of the transactions contemplated by
this Stock Purchase Right Agreement.
10. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this Stock Purchase Right Agreement constitute the
entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and Grantee with respect to the subject matter hereof, and may not be modified
adversely to the Grantee's interest except by means of a writing signed by the
Company and Grantee. This agreement is governed by the internal substantive laws
but not the choice of law rules of California.
11. No Guarantee of Continued Service. GRANTEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF STOCK PURCHASE RIGHTS PURSUANT TO THE VESTING SCHEDULE
HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE
COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS STOCK PURCHASE
AGREEMENT OR ACQUIRING SHARES HEREUNDER). GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT THIS STOCK PURCHASE RIGHT AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS
OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH
GRANTEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE GRANTEE'S RELATIONSHIP AS A
SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
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Grantee acknowledges receipt of a copy of the Plan and represents that
he or she is familiar with the terms and provisions thereof, and hereby accepts
this Stock Purchase Right Agreement subject to all of the terms and provisions
thereof. Grantee has reviewed the Plan and this Stock Purchase Right Agreement
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Stock Purchase Right Agreement and fully understands all
provisions of the Stock Purchase Right Agreement. Grantee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Stock Purchase
Right Agreement. Grantee further agrees to notify the Company upon any change in
the residence address indicated below.
GRANTEE: NEXTCARD, INC.
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Signature By: _________________
Its: _________________
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Print Name
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Residence Address
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EXHIBIT A
NEXTCARD, INC.
1997 STOCK PLAN
EXERCISE NOTICE
NextCard, Inc.
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Attention: Secretary
1. Exercise of Stock Purchase Right. Effective as of today,
______________(date), the undersigned ("Grantee") hereby elects to exercise
Grantee's right to purchase _________ shares of the Common Stock (the "Shares")
of NextCard, Inc. (the "Company") under and pursuant to the 1997 Stock Plan (the
"Plan") and the Stock Purchase Right Agreement dated _________________ (the
"Stock Purchase Right Agreement").
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Stock Purchase Right
Agreement.
3. Representations of Grantee. Grantee acknowledges that Grantee has
received, read and understood the Plan and the Stock Purchase Right Agreement
and agrees to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the shares
underlying the Stock Purchase Right Agreement, notwithstanding the exercise of
the Stock Purchase Right. The Shares shall be issued to the Grantee as soon as
practicable after the Stock Purchase Right is exercised. No adjustment shall be
made for a dividend or other right for which the record date is prior to the
date of issuance.
5. Tax Consultation. Grantee understands that Grantee may suffer
adverse tax consequences as a result of Grantee's purchase or disposition of the
Shares. Grantee represents that Grantee has consulted with any tax consultants
Grantee deems advisable in connection with the purchase or disposition of the
Shares and that Grantee is not relying on the Company for any tax advice.
6. Restrictive Legends and Stop-Transfer Orders. Grantee acknowledges
and understands that, due to his position within the Company, the Shares may
constitute "restricted securities" under the Securities Act and may only be sold
or otherwise disposed of in accordance with the provisions of Rule 144
thereunder. Grantee agrees that, in order to ensure compliance with federal and
state securities laws, the Company may place restrictive legends or issue
appropriate "stop transfer" instructions to its transfer agent.
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7. Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Stock Purchase
Right Agreement shall inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer herein set forth, this Stock
Purchase Right Agreement shall be binding upon Grantee and his or her heirs,
executors, administrators, successors and assigns.
8. Interpretation. Any dispute regarding the interpretation of this
Stock Purchase Right Agreement shall be submitted by Grantee or by the Company
forthwith to the Administrator which shall review such dispute at its next
regular meeting. The resolution of such a dispute by the Administrator shall be
final and binding on all parties.
9. Governing Law; Severability. This Stock Purchase Right Agreement is
governed by the internal substantive laws but not the choice of law rules, of
California.
10. Entire Agreement. The Plan and the Stock Purchase Right Agreement
is incorporated herein by reference. This Exercise Notice, the Stock Purchase
Right Agreement, the Plan and the Investment Representation Statement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the
Company and Grantee with respect to the subject matter hereof, and may not be
modified adversely to the Grantee's interest except by means of a writing signed
by the Company and Grantee.
Submitted by: Accepted by:
GRANTEE NextCard, Inc.
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Signature By:
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Print Name Its:
Address: Address:
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Date Received
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
GRANTEE:
COMPANY: NEXTCARD, INC.
SECURITY: COMMON STOCK
AMOUNT:
DATE:
In connection with the purchase of the above-listed Securities, the undersigned
Grantee represents to the Company the following:
(c) Grantee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Grantee is
acquiring these Securities for investment for Grantee's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(d) Grantee acknowledges and understands that the Securities may
constitute "restricted securities" under the Securities Act and may not have
been registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Grantee's investment intent as expressed herein. In this connection,
Grantee understands that, in the view of the Securities and Exchange Commission,
the statutory basis for such exemption may be unavailable if Grantee's
representation was predicated solely upon a present intention to hold these
Securities for the minimum capital gains period specified under tax statutes,
for a deferred sale, for or until an increase or decrease in the market price of
the Securities, or for a period of one year or any other fixed period in the
future. Grantee further understands that the Securities must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. Grantee further acknowledges
and understands that the Company is under no obligation to register the
Securities. Grantee understands that the certificate evidencing the Securities
will be imprinted with a legend which prohibits the transfer of the Securities
unless they are registered or such registration is not required in the opinion
of counsel satisfactory to the Company, a legend prohibiting their transfer
without the consent of the Commissioner of Corporations of the State of
California and any other legend required under applicable state securities laws.
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(e) Grantee is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions. Rule 701 provides that if the issuer qualifies under Rule
701 at the time of the grant of the Stock Purchase Right to the Grantee, the
exercise will be exempt from registration under the Securities Act. In the event
the Company becomes subject to the reporting requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, ninety (90) days thereafter (or such
longer period as any market stand-off agreement may require) the Securities
exempt under Rule 701 may be resold, subject to the satisfaction of certain of
the conditions specified by Rule 144, including: (1) the resale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of
certain public information about the Company, (3) the amount of Securities being
sold during any three month period not exceeding the limitations specified in
Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time
of grant of the Stock Purchase Right, then the Securities may be resold in
certain limited circumstances subject to the provisions of Rule 144, which
requires the resale to occur not less than one year after the later of the date
the Securities were sold by the Company or the date the Securities were sold by
an affiliate of the Company, within the meaning of Rule 144; and, in the case of
acquisition of the Securities by an affiliate, or by a non-affiliate who
subsequently holds the Securities less than two years, the satisfaction of the
conditions set forth in sections (1), (2), (3) and (4) of the paragraph
immediately above.
(f) Grantee further understands that in the event all of the applicable
requirements of Rule 701 or 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 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. Grantee understands that no assurances can be given that any
such other registration exemption will be available in such event.
Signature of Grantee:
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Date:
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