EXHIBIT 99.4
SCOPUS TECHNOLOGY, INC.
STOCK OPTION AGREEMENT TERMS AND CONDITIONS
1. Grant of Option. Scopus Technology, Inc., a California corporation
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(the Company "), has granted to the Optionee (the " Optionee ") named in the
Notice portion of this Stock Option Agreement (the "Notice of Grant"), an option
(the "Option") to purchase a total number of shares of Common Stock (the
"Shares") set forth in the Notice of Grant, at the exercise price per share set
forth in the Notice of Grant (the "Exercise Price") subject to the terms,
definitions and provisions of the Scopus Technology, Inc. 1991 Stock Option Plan
(the "Plan"), which is incorporated herein by reference. Unless otherwise
defined herein, the terms defined in the Plan shall have the same defined
meanings in this Option.
If designated as an Incentive Stock Option in the Notice of Grant, this
Option is intended to qualify as an Incentive Stock Option as defined in Section
422 of the Code.
2. Exercise of Option. This Option shall be exercisable during its term
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in accordance with the Exercise Schedule set out in the Notice of Grant and with
the provisions of Section 9 of the Plan as follows:
(i) Right to Exercise.
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(a) This Option may not be exercised for a fraction of a share.
(b) In the event of Optionee's death, disability or other
termination of Optionee's consulting relationship or Continuous Status as an
Employee, the exercisability of the Option is governed by Section 9 of the Plan,
subject to the limitation contained in subsection 2(i)(c).
(c) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in the Notice of Grant.
(ii) Method of Exercise. This Option shall be exercisable by delivery
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of an Exercise Notice and Stock Purchase Agreement (the "Purchase Agreement") in
the form attached as Exhibit A, which shall state the number of Shares in
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respect of which the Option is being exercised, and such other representations
and agreements as to the holder's investment intent with respect to such shares
of Common Stock as may be required by the Company pursuant to the provisions of
the Plan. Such Purchase Agreement shall be signed by the Optionee and, if the
Optionee is married, the Optionee's spouse, and shall be delivered in person or
by certified mail to the Secretary of the Company. The Purchase Agreement shall
be accompanied by payment of the Exercise Price. This Option shall be deemed to
be exercised upon receipt by the Company of such fully executed Purchase
Agreement accompanied by the Exercise Price.
No Shares will be issued pursuant to the exercise of an Option unless such
issuance and such exercise shall comply with all relevant provisions of law and
the requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
3. Method of Payment. Payment of the Exercise Price shall be by cash,
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check or a combination thereof.
4. Tax Consequences. Set forth below is a brief summary as of the date
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of this Option of some of the federal and state tax consequences of exercise of
this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
(i) Exercise of Incentive Stock Option. If this Option qualifies as
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an Incentive Stock Option ("ISO"), there will be no regular federal income tax
liability or California 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 the Optionee to
the alternative minimum tax in the year of exercise.
(ii) Exercise of Nonqualified Stock Option ("NSO"). If this Option
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does not qualify as an ISO, there may be a regular federal income tax liability
and a state income tax liability upon the exercise of the Option. The Optionee
will be treated as having received compensation income (taxable at ordinary
income tax rates) equal to the excess, if any, of the fair market value of the
Shares on the date of exercise over the Exercise Price. If Optionee is an
employee, the Company will be required to withhold from Optionee's compensation
or collect from Optionee and pay to the applicable taxing authorities an amount
equal to a percentage of this compensation income at the time of exercise.
(iii) Disposition of Shares. In the case of an NSO, if Shares are
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held for at least one year, any gain realized on disposition of the Shares will
be treated as long-term capital gain for federal and state income tax purposes.
In the case of an ISO, if Shares transferred pursuant to the Option are held for
at least one year after exercise and are disposed of at least two years after
the Date of Grant, any gain realized on disposition of the Shares will also be
treated as long-term capital gain for federal and state income tax purposes. If
Shares purchased under an ISO are disposed of within such one-year period or
within two years after the Date of Grant, any gain realized on such disposition
will be treated as compensation income (taxable at ordinary income rates) to the
extent of the excess, if any, of the fair market value of the Shares on the date
of exercise over the Exercise Price.
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(iv) Notice of Disqualifying Disposition of ISO Shares. If the
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Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after transfer of such Shares to the Optionee upon exercise of the ISO, the
Optionee shall immediately notify the Company in writing of such disposition.
Optionee agrees that Optionee may be subject to income tax withholding by the
Company on the compensation income recognized by the Optionee from the early
disposition by payment in cash or out of the current earnings paid to the
Optionee.
BY ACCEPTING THIS OPTION GRANT, OPTIONEE ACKNOWLEDGES AND AGREES THAT
THE VESTING OF SHARES PURSUANT TO THE OPTION HEREOF IS EARNED ONLY BY CONTINUING
CONSULTANCY OR EMPLOYMENT AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF
BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE
COMPANY'S 1991 STOCK OPTION PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE,
SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT
OR CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S
RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTANCY
AT ANY TIME, WITH OR WITHOUT CAUSE.
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EXHIBIT A
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EXERCISE NOTICE AND STOCK PURCHASE AGREEMENT
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Scopus Technology, Inc.
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Attention: ____________________
1. Exercise of Option. Effective as of today, __________, 199___, the
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undersigned ("Purchaser") hereby elects to purchase shares (the "Shares") of-
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Common Stock of Scopus Technology, Inc. (the "Company") under and pursuant to
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the Company's 1991 Stock Option Plan (the "Plan") and the Stock Option Agreement
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dated _______________ (the ""Option Agreement"). The purchase price for the
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Shares shall be $ , as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
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full purchase price for the Shares.
3. Right of First Refusal. Purchaser acknowledges and agrees that before
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any Shares registered in the name of Purchaser may be sold or transferred
(including transfer by operation of law), such Shares shall first be offered to
the Company as follows:
(a) Purchaser shall deliver a notice ("Notice") to the Company stating
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(i) Purchaser's bona fide intention to sell or transfer such Shares, (ii) the
number of such Shares to be sold or transferred, (iii) the price for which he or
she proposes to sell or transfer such Shares, and (iv) the name of the proposed
purchaser or transferee.
(b) Within thirty (30) days after receipt of the Notice, the Company
or its assignee may elect to purchase all or more Shares to which the Notice
refers at a price per share equal to the price per share set forth in the
Notice.
(c) If the Company elects to exercise its right of first refusal, the
Company shall notify Purchaser in writing of the date and place for closing,
which closing shall occur not more than forty-five (45) days after the Company's
receipt of the Notice. At the closing, the holder of the certificate for the
shares to be sold shall deliver the stock certificate or certificates evidencing
such Shares, and the Company shall deliver the purchase price therefor.
4. Market Standoff Agreement. Purchaser agrees, in connection with the
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Company's initial underwritten public offering of the Company's securities, (1)
not to sell, make a short sale of, loan, grant any options for the purchase of,
or otherwise dispose of any shares of Common Stock of the Company held by
Purchaser (other than those shares included in the registration) without the
prior written consent of the Company or the underwriters managing such initial
underwritten public offering of the Company's securities for one hundred eighty
(180) days from the effective date of such registration, and (2) further agrees
to execute any agreement reflecting the above provision as may be requested by
the underwriters at the time of the public offering. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such 180-day period.
5. Representations of Purchaser. In connection with the exercise of the
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Option, Purchaser hereby represents and warrants to the Company as follows:
(a) Investment Intent; Capacity to Protect Interests. Purchaser is
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acquiring these securities solely for his or her own account for investment and
not with a view to or for sale in connection with any distribution of the Shares
or any portion thereof and not with any present intention of selling, offering
to sell or otherwise disposing of or distributing the Shares or any portion
thereof in any transaction other than a transaction exempt from registration
under the Securities Act of 1933, as amended (the " 1933 Act"). Purchaser also
represents that the entire legal and beneficial interest of the Shares is being
purchased, and will be held, for the Purchaser's account only, and neither in
whole or in part for any other person. Purchaser either has a preexisting
business or personal relationship with the Company or any of its officers,
directors or controlling persons or by reason of Purchaser's business or
financial experience or the business or financial experience of Purchaser's
professional advisors who are unaffiliated with and who are not compensated by
the Company or any affiliate or selling agent of the Company, directly or
indirectly, could be reasonably assumed to have the capacity to evaluate the
merits and risks of an investment in the Company and to protect Purchaser's own
interests in connection with this transaction.
(b) Residence. Purchaser's principal residence is located at the
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address indicated beneath Purchaser's signature below.
(c) Information Concerning Company. Purchaser has heretofore received
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all information regarding the Company and its plans, operations and financial
condition as Purchaser has deemed necessary and appropriate to enable Purchaser
to evaluate the financial risk inherent in making an investment in the Shares,
and Purchaser has received satisfactory and complete information concerning the
business and financial condition of the Company in response to all inquiries in
respect thereof.
(d) Economic Risk. Purchaser realizes that the purchase of the Shares
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will be a highly speculative investment and involves a high degree of risk, and
Purchaser is able, without impairing Purchaser's financial condition, to hold
the Shares for an indefinite period of time and to suffer a complete loss on the
Purchaser's investment.
(e) Restricted Securities. Purchaser understands and acknowledges
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that:
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(i) the sale of the Shares has not been registered under the
Act, and the Shares must be held indefinitely unless subsequently registered
under the 1933 Act or an exemption from such registration is available (such as
Rule 144 or the resale provisions of Rule 701 under the Act) and the Company is
under no obligation to register the Stock;
(ii) the share certificate representing the Shares will be
stamped with the legends specified in Section 6 hereof; and
(iii) the Company will make a notation in its records of the
aforementioned restrictions on transfer and legends.
(f) Disposition under Rule 144. Purchaser understands that the Shares
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are restricted securities within the meaning of Rule 144 promulgated under the
1933 Act; that the exemption from registration under Rule 144 will not be
available in any event for at least two years from the date of purchase and
payment of the Shares (unless Rule 701 promulgated under the 1933 Act is
available), and even then will not be available unless (i) a public trading
market then exists for the Common Stock of the Company, (ii) adequate
information concerning the Company is then available to the public, and (iii)
other terms and conditions of Rule 144 are complied with; and that any sale of
the Shares may be made only in limited amounts in accordance with such terms and
conditions. Purchaser further understands that the resale provisions of Rule
701, if available, will not apply until ninety (90) days after the Company
becomes subject to the reporting obligations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). There can be no assurance that the
requirements of Rule 144 or Rule 701 will be met or that the Shares will ever be
saleable.
(g) Further Limitations on Disposition. Without in any way limiting
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his representations set forth above, Purchaser further agrees that it shall in
no event make any disposition of all or any portion of the Shares unless and
until:
(i) (A) there is then in effect a Registration Statement
under the 1933 Act covering such proposed disposition and such disposition is
made in accordance with said Registration Statement; or, (B)(1) Purchaser shall
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have notified the Company of the proposed disposition and shall have furnished
the Company with a detailed statement of the circumstances surrounding the
proposed disposition, and (2) the Company shall have received an opinion from
its legal counsel to the effect that such disposition will not require
registration of such shares under the 1933 Act; and,
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(ii) Purchaser shall have complied with the restrictions on
transfer, Market Standoff Agreement and Right of First Refusal set forth in this
Agreement; and,
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(iii) any prospective transferee agrees to be bound by the
restrictions on transfer, Market Standoff Agreement and Right of First Refusal
set forth in this agreement.
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6. Restrictive Legends and Stop-Transfer Orders.
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(a) Legends. Purchaser understands and agrees that the Company shall
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cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER,
SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, RIGHTS OF REPURCHASE AND RIGHTS OF FIRST
REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S), AS SET FORTH IN THE
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES
UNDER WHICH THESE SHARES WERE PURCHASED, A COPY OF WHICH MAY BE
OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS AND RIGHT OF REPURCHASE ARE BINDING ON TRANSFEREES OF
THESE SHARES.
(b) Stop-Transfer Notices. Purchaser agrees that, in order to ensure
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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
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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.
7. Tax Consequences.
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(a) Tax Consultation. Purchaser understands that Purchaser may suffer
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adverse tax consequences upon Purchaser's purchase or disposition of the Shares.
Purchaser represents that
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Purchaser has consulted with any tax consultants Purchaser deems advisable in
connection with the purchase or disposition of the Shares and that Purchaser is
not relying on the Company for any tax advice.
8. Interpretation. Any dispute regarding the interpretation of this
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agreement shall be submitted by Purchaser or by the Company forthwith to the
Administer of the Plan, 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 the Company and on Purchaser.
9. Further Instruments. The parties agree to execute such further
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instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this agreement.
10. Notices. Any notice required or permitted hereunder to the Company or
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Purchaser shall be given in writing and shall be deemed effectively given upon
personal delivery or upon deposit in the United States mail by registered or
certified mail, with postage and fees prepaid, addressed to the other party at
its address as shown below beneath its signature, or to such other address as
such party may designate in writing from time to time to the other party.
11. Successors and Assigns. The Company may assign any of its rights
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under this agreement to single or multiple assignees, and this agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this agreement shall be binding
upon Purchaser and his or her heirs, executors, administrators, successors and
assigns.
12. Entire Agreement: Amendment. The 1991 Stock Option Plan (the "Plan")
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and the Option Agreement are incorporated herein by reference. The Plan, the
Option Agreement and this Stock Purchase Agreement, and the exhibits hereto and
thereto, constitute the entire agreement of the parties and supersede in their
entirety all prior undertakings and agreements of the Company and Purchaser with
respect to the subject matter hereof. This agreement may not be amended, nor
may any provision hereof or under the Option Agreement or the Plan be waived,
other than by an instrument in writing executed by a duly authorized officer of
the Company.
13. Governing Law: Severability. This agreement shall be governed by and
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construed in accordance with the laws of the State of California as they apply
to contracts entered into and wholly to be performed within the State of
California. Should any provision of this agreement be determined by a court of
law to be illegal or unenforceable, the other provisions shall nevertheless
remain effective and shall remain enforceable.
By Purchaser's signature below, Purchaser represents that he or she is
familiar with the terms and provisions of the Plan and the Option Agreement, and
hereby accepts this Agreement subject to all of the terms and provisions
thereof. Purchaser has reviewed the Plan, the Option Agreement and this
Agreement in their entirety, has had an opportunity to obtain the advice of
counsel prior to
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executing this Agreement and fully understands all provisions of this Agreement.
Purchaser agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions arising under the Plan,
the Option Agreement or this Agreement. Purchaser further agrees to notify the
Company upon any change in Purchaser's residence indicated below Purchaser's
signature.
Submitted by: Accepted by:
PURCHASER: SCOPUS TECHNOLOGY, INC.
By:
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(Signature)
Title:
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Address: Address:
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CONSENT OF SPOUSE
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The undersigned spouse of Purchaser has read and hereby approves the
foregoing Stock Purchase Agreement (the "Purchase Agreement"). In consideration
of the Company's granting my spouse the right to purchase the Shares as set
forth in the Option Agreement, the undersigned hereby agrees to be irrevocably
bound by the Purchase Agreement and further agrees that any community property
interest shall be similarly bound by the Purchase Agreement. 'Me undersigned
hereby appoints the undersigned's spouse as attorney-in-fact for the undersigned
with respect to any amendment or exercise of any rights under the Purchase
Agreement.
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Spouse of Purchaser