Exhibit 10.6
W EBSENSE , I NC .
E ARLY E XERCISE S TOCK P URCHASE A GREEMENT
N ON -D ISCRETIONARY G RANT P ROGRAM
UNDER THE 2009 E QUITY I NCENTIVE P LAN
T HIS A GREEMENT is made by and between W EBSENSE ,
I NC ., a Delaware corporation (the “
Company ”), and
(“ Purchaser ”).
W ITNESSETH :
W HEREAS , Purchaser holds a stock option dated
to purchase shares of common stock (“ Common
Stock ”) of the Company (the “
Option ”) pursuant to the Company’s
Non-Discretionary Grant Program under the 2009 Equity Incentive
Plan (the “ Plan ”); and
W HEREAS , the
Option is evidenced by a Grant Notice and Option Agreement;
and
W HEREAS , Purchaser desires to exercise the Option on the
terms and conditions contained herein; and
W HEREAS , Purchaser wishes to take advantage of the early
exercise provision of Purchaser’s Option and therefore to
enter into this Agreement;
N OW , THEREFORE , IT IS AGREED between the parties as follows:
1. I NCORPORATION OF P LAN AND O PTION BY R EFERENCE . This
Agreement is subject to all of the terms and conditions as set
forth in the Plan and the Option. If there is a conflict between
the terms of this Agreement and/or the Option and the terms of the
Plan, the terms of the Plan shall control. If there is a conflict
between the terms of this Agreement and the terms of the Option,
the terms of the Option shall control. Defined terms not explicitly
defined in this Agreement but defined in the Plan shall have the
same definitions as in the Plan. Defined terms not explicitly
defined in this Agreement or the Plan but defined in the Option
shall have the same definitions as in the Option.
2. P URCHASE AND S ALE OF C OMMON S TOCK .
(a) Agreement to purchase and
sell Common Stock. Purchaser hereby agrees to purchase from the
Company, and the Company hereby agrees to sell to Purchaser, shares
of the Common Stock of the Company in accordance with the Notice of
Exercise duly executed by Purchaser and attached hereto as Exhibit
A.
(b) Closing.
The closing hereunder, including
payment for and delivery of the Common Stock, shall occur at the
offices of the Company immediately following the execution of this
Agreement, or at such other time and place as the parties may
mutually agree; provided, however, that if stockholder
approval of the Plan is required before the Option may be
exercised, then the Option may not be exercised, and the closing
shall be delayed, until such stockholder approval is obtained. If
such stockholder approval is not obtained within the time limit
specified in the Plan, then this Agreement shall be null and
void.
1.
3. U NVESTED S HARE R EPURCHASE O PTION .
(a) Repurchase Option.
In the event Purchaser’s
Continuous Service terminates, then the Company shall have an
irrevocable option (the “ Repurchase Option
”) for a period of six (6) months after said termination
(or in the case of shares issued upon exercise of the Option after
such date of termination, within six (6) months after the date
of the exercise), or such longer period as may be agreed to by the
Company and Purchaser, to repurchase from Purchaser or
Purchaser’s personal representative, as the case may be,
those shares that Purchaser received pursuant to the exercise of
the Option that have not as yet vested as of such termination date
in accordance with the Vesting Schedule indicated on
Purchaser’s Grant Notice (the “ Unvested
Shares ”).
(b) Share Repurchase
Price. The Company may
repurchase all or any of the Unvested Shares at the lower of
(i) the Fair Market Value of the such shares (as determined
under the Plan) on the date of repurchase, or (ii) the price
equal to Purchaser’s Exercise Price for such shares as
indicated on Purchaser’s Grant Notice.
4. E XERCISE OF R EPURCHASE O PTION . The
Repurchase Option shall be exercised by written notice signed by
such person as designated by the Company, and delivered or mailed
as provided herein. Such notice shall identify the number of shares
of Common Stock to be purchased and shall notify Purchaser of the
time, place and date for settlement of such purchase, which shall
be scheduled by the Company within the term of the Repurchase
Option set forth above. The Company shall be entitled to pay for
any shares of Common Stock purchased pursuant to its Repurchase
Option at the Company’s option in cash or by offset against
any indebtedness owing to the Company by Purchaser, or by a
combination of both. Upon delivery of such notice and payment of
the purchase price in any of the ways described above, the Company
shall become the legal and beneficial owner of the Common Stock
being repurchased and all rights and interest therein or related
thereto, and the Company shall have the right to transfer to its
own name the Common Stock being repurchased by the Company, without
further action by Purchaser.
5. C APITALIZATION A DJUSTMENTS TO C OMMON S TOCK . In
the event of a Capitalization Adjustment, then any and all new,
substituted or additional securities or other property to which
Purchaser is entitled by reason of Purchaser’s ownership of
Common Stock shall be immediately subject to the Repurchase Option
and be included in the word “Common Stock” for all
purposes of the Repurchase Option with the same force and effect as
the shares of the Common Stock presently subject to the Repurchase
Option, but only to the extent the Common Stock is, at the time,
covered by such Repurchase Option. While the total Option Price
shall remain the same after each such event, the Option Price per
share of Common Stock upon exercise of the Repurchase Option shall
be appropriately adjusted.
6. C ORPORATE T RANSACTIONS . In
the event of a Corporate Transaction, then the Repurchase Option
may be assigned by the Company to the successor of the Company (or
such successor’s parent company), if any, in connection with
such Corporate Transaction. To the extent the Repurchase Option
remains in effect following such Corporate Transaction, it shall
apply to the new
2.
capital stock or other property received in
exchange for the Common Stock in consummation of the Corporate
Transaction, but only to the extent the Common Stock was at the
time covered by such right. Appropriate adjustments shall be made
to the price per share payable upon exercise of the Repurchase
Option to reflect the Corporate Transaction upon the
Company’s capital structure; provided, however, that
the aggregate price payable upon exercise of the Repurchase Option
shall remain the same.
7. E SCROW OF U NVESTED C OMMON S TOCK . As
security for Purchaser’s faithful performance of the terms of
this Agreement and to insure the availability for delivery of
Purchaser’s Common Stock upon exercise of the Repurchase
Option herein provided for, Purchaser agrees, at the closing
hereunder, to deliver to and deposit with the Secretary of the
Company or the Secretary’s designee (“ Escrow
Agent ”), as Escrow Agent in this transaction, three
(3) stock assignments duly endorsed (with date and number of
shares blank) in the form attached hereto as Exhibit B, together
with a certificate or certificates evidencing all of the Common
Stock subject to the Repurchase Option; said documents are to be
held by the Escrow Agent and delivered by said Escrow Agent
pursuant to the Joint Escrow Instructions of the Company and
Purchaser set forth in Exhibit C, attached hereto and incorporated
by this reference, which instructions also shall be delivered to
the Escrow Agent at the closing hereunder.
8. R IGHTS OF P URCHASER . Subject to the provisions of the Option,
Purchaser shall exercise all rights and privileges of a stockholder
of the Company with respect to the shares deposited in escrow.
Unless specified otherwise in the Option Agreement, Purchaser shall
be deemed to be the holder of the shares for purposes of receiving
any dividends that may be paid with respect to such shares and for
purposes of exercising any voting rights relating to such shares,
even if some or all of such shares have not yet vested and been
released from the Company’s Repurchase Option.
9. L IMITATIONS ON T RANSFER . In
addition to any other limitation on transfer created by applicable
securities laws, Purchaser shall not sell, assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Common
Stock while the Common Stock is subject to the Repurchase Option.
After any Common Stock has been released from the Repurchase
Option, Purchaser shall not sell, assign, hypothecate, donate,
encumber or otherwise dispose of any interest in the Common Stock
except in compliance with the provisions herein and applicable
securities laws. Furthermore, the Common Stock shall be subject to
any right of first refusal in favor of the Company or its assignees
that may be contained in the Company’s Bylaws.
10. R ESTRICTIVE L EGENDS . All
certificates representing the Common Stock shall have endorsed
thereon legends in substantially the following forms (in addition
to any other legend which may be required by other agreements
between the parties hereto):
(a) “THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO AN OPTION SET FORTH IN AN AGREEMENT
BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR SUCH
HOLDER’S PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICE OF THIS COMPANY. ANY TRANSFER OR ATTEMPTED
TRANSFER OF ANY SHARES SUBJECT TO SUCH OPTION IS VOID WITHOUT THE
PRIOR EXPRESS WRITTEN CONSENT OF THE COMPANY.”
3.
(b) “THE SHARES REPRESENTED BY THIS
CERTIFICATE WERE ISSUED PURSUANT TO THE EXERCISE OF A NONSTATUTORY
STOCK OPTION.
(c) Any legend required by appropriate blue sky
officials.
11. S ECTION 83(b) E LECTION . Purchaser understands that Section 83(a) of
the Code taxes as ordinary income the difference between the amount
paid for the Common Stock and the fair market value of the Common
Stock as of the date any restrictions on the Common Stock lapse. In
this context, “restriction” includes the right of the
Company to buy back the Common Stock pursuant to the Repurchase
Option set forth above. Purchaser understands that Purchaser may
elect to be taxed at the time the Common Stock is purchased, rather
than when and as the Repurchase Option expires, by filing an
election under Section 83(b) (an “ 83(b)
Election ”) of the Code with the Internal Revenue
Service within thirty (30) days of the date of purchase. Even
if the fair market value of the Common Stock at the time of the
execution of this Agreement equals the amount paid for the Common
Stock, the 83(b) Election must be made to avoid income under
Section 83(a) in the future. Purchaser understands that
failure to file such an 83(b) Election in a timely manner may
result in adverse tax consequences for Purchaser. Purchaser further
understands that Purchaser must file an additional copy of such
83(b) Election with his or her federal income tax return for the
calendar year in which the date of this Agreement falls. Purchaser
acknowledges that the foregoing is only a summary of the effect of
United States federal income taxation with respect to purchase of
the Common Stock hereunder, and does not purport to be complete.
Purchaser further acknowledges that the Company has directed
Purchaser to seek independent advice regarding the applicable
provisions of the Code, the income tax laws of any municipality,
state or foreign country in which Purchaser may reside, and the tax
consequences of Purchaser’s death. Purchaser assumes all
responsibility for filing an 83(b) Election and paying all taxes
resulting from such election or the lapse of the restrictions on
the Common Stock.
12. R EFUSAL TO T RANSFER . The
Company shall not be required (a) to transfer on its books any
shares of Common Stock of the Company which shall have been
transferred in violation of any of the provisions set forth in this
Agreement, or (b) to treat as owner of such shares or to
accord the right to vote as such owner or to pay dividends to any
transferee to whom such shares shall have been so
transferred.
13. N O S ERVICE R IGHTS . This
Agreement is not a service contract and nothing in this Agreement
shall affect in any manner whatsoever the right or power of the
Company or its Affiliates to terminate Purchaser’s service
for any reason at any time, with or without cause and with or
without notice.
14. M ISCELLANEOUS .
(a) Notices.
All notices required or permitted
hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, and if not during normal business
hours of the recipient, then on the next business day,
(c) five (5) calendar days after
4.
having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one
(1) business day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the
other party hereto at such party’s address hereinafter set
forth on the signature page hereof, or at such other address as
such party may designate by ten (10) days advance written
notice to the other party hereto.
(b) Successors and
Assigns. This Agreement
shall inure to the benefit of the successors and assigns of the
Company and, subject to the restrictions on transfer herein set
forth, be binding upon Purchaser, Purchaser’s successors, and
assigns. The Company may assign the Repurchase Option hereunder at
any time or from time to time, in whole or in part.
(c) Attorneys’ Fees;
Specific Perf
