Exhibit 10.2


 


OPSWARE INC.


 


AMENDED AND RESTATED 2000 INCENTIVE STOCK PLAN


 


RESTRICTED STOCK PURCHASE AGREEMENT


 


This
Restricted Stock Purchase Agreement (the “Agreement”)
is made and entered into as of                        ,
2      (the “Effective Date”)
by and between Opsware Inc., a Delaware corporation (the “Company”),
and the purchaser named below (the “Purchaser”).  Capitalized terms not defined herein shall
have the meaning ascribed to them in the Company’s Amended
and Restated 2000 Incentive Stock Plan (the “Plan”).


 


Purchaser:


 


Address:


 


 


 


Total
Number of Shares:


 


Purchase
Price Per Share:


 


Total
Purchase Price:


 


1.             Purchase of Shares.


 


1.1           Purchase of Shares.  On the Effective Date and subject to the
terms and conditions of this Agreement and the Plan, Purchaser hereby purchases
from the Company, and the Company hereby sells to Purchaser, the Total Number
of Shares set forth above (the “Shares”) of
the Company’s Common Stock at the Purchase Price Per Share as set forth above
(the “Purchase Price Per Share”)
for a Total Purchase Price as set forth above (the “Purchase Price”).  As used in this Agreement, the term “Shares” includes the Shares
purchased under this Agreement and all securities received (i) in
replacement of the Shares, (ii) as a result of stock dividends or stock
splits with respect to the Shares, and (iii) in replacement of the Shares
in a merger, recapitalization, reorganization or similar corporate transaction.


 


1.2           Title to Shares.  The exact spelling of the name(s) under which
Purchaser will take title to the Shares is:


 


“                                                      ”
 


Purchaser
desires to take title to the Shares as follows:


 


o    Individual,
as separate property


 


o    Husband
and wife, as community property


 





















 


o    Joint
Tenants


 


1.3           Payment.  Purchaser hereby delivers payment of the
Purchase Price as follows (check and complete as appropriate):


 


o            in cash in the amount of $        ,
receipt of which is acknowledged by the Company;


 


o            by cancellation of indebtedness of the Company owed to Purchaser in the
amount of $                        ;


 


o            by delivery of                
fully-paid, nonassessable and vested shares of the Common Stock of the Company
owned by Purchaser for at least six (6) months prior to the date hereof
(which have been paid for within the meaning of SEC Rule 144 and, if
purchased by use of a promissory note, such note has been fully paid with
respect to such vested shares), or obtained by Purchaser in the open public
market, and owned free and clear of all liens, claims, encumbrances or security
interests, valued at the current Fair Market Value of $            
per share; or


 


o            by the waiver hereby of compensation due or accrued for services rendered
in the amount of $                .


 


2.             Delivery.


 


2.1           Deliveries by Purchaser.  Purchaser hereby delivers to the Company (i) two
signed copies of this Agreement; (ii) two signed copies of the Stock Power
and Assignment Separate from Stock Certificate in the form of Exhibit 2
(“Stock Powers”) attached hereto; and (iii) payment
of the Purchase Price in the amount of $          ,
receipt of which is acknowledged by the Company.  The Company will issue duly executed stock
certificates evidencing the Shares in Purchaser’s name.  The certificates shall be placed in escrow as
provided in Section 7 below until termination of the Company’s Repurchase
Option described in Section 5 below.


 


2.2           Deliveries by the Company.  Upon its receipt of the Purchase Price and
all the documents to be executed and delivered by Purchaser to the Company
under Section 2.1, the Company will issue a duly executed stock
certificate evidencing the Shares in the name of Purchaser.


 


3.             Representations and Warranties of Purchaser.  Purchaser represents and warrants to the
Company that:


 


3.1           Agrees to Terms of the Plan and this
Agreement.  Purchaser has received a
copy of the Plan and this Agreement, has read and understands the terms of the
Plan and this Agreement, and agrees to be bound by their terms and conditions.  Purchaser acknowledges that there may be
adverse tax consequences upon purchase and disposition of the Shares, and that
Purchaser should consult a tax adviser prior to such purchase
or disposition.


 


3.2           Purchase for Own Account for Investment.  Purchaser is purchasing the Shares for
Purchaser’s own account for investment purposes only and not with a view to, or
for


 





















 


sale in connection with, a
distribution of the Shares within the meaning of the Securities Act.  Purchaser has no present intention of selling
or otherwise disposing of all or any portion of the Shares and no one other
than Purchaser has any beneficial ownership of any of the Shares.


 


3.3           Access to Information.  Purchaser has had access to all information
regarding the Company and its present and prospective business, assets, liabilities
and financial condition that Purchaser reasonably considers important in making
the decision to purchase the Shares, and Purchaser has had ample opportunity to
ask questions of the Company’s representatives concerning such matters and this
investment.


 


3.4           Understanding of Risks.  Purchaser is fully aware of:  (i) the highly speculative nature of the
investment in the Shares; (ii) the financial hazards involved; (iii) the
lack of liquidity of the Shares and the restrictions on transferability of the
Shares (e.g., that Purchaser may not be able to sell or dispose of the
Shares or use them as collateral for loans); (iv) the qualifications and
backgrounds of the management of the Company; and (v) the tax consequences
of investment in the Shares.  Purchaser
is capable of evaluating the merits and risks of this investment, has the
ability to protect Purchaser’s own interests in this transaction and is
financially capable of bearing a total loss of this investment.


 


3.5           No General Solicitation.  At no time was Purchaser presented with or
solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Shares.


 


4.             Restrictions on Transfers.  Purchaser shall not transfer, assign,
grant a lien or security interest in, pledge, hypothecate, encumber or
otherwise dispose of any of the Shares which are subject to the Company’s
Repurchase Option (as defined below), except as permitted by this Agreement.


 


5.             Company’s
Repurchase Option for Unvested Shares. 
Except as provided in Section 5.1 below, the Company, its successor
or assignee, shall have the option to repurchase all or a portion of the
Purchaser’s Unvested Shares (as defined in Section 5.1 below) on the terms
and conditions set forth in this Section (the “Repurchase
Option”) if Purchaser is terminated for any reason, or no
reason, including without limitation Purchaser’s death, Disability (as defined
in the Plan), voluntary resignation or termination by the Company with or
without Cause (as defined in the Plan).


 


5.1                                 Unvested
and Vested Shares.


 


(a)           Shares that are
released from the Company’s Repurchase Option pursuant to this Section 5.1
are “Vested Shares.”  All other Shares are “Unvested
Shares.”


 


(b)           [Vesting
and Acceleration Schedule]


 


5.2           Exercise
of Repurchase Option.  At any time
within ninety (90) days after the date of termination of employment, the
Company, or its assignee(s), may elect to repurchase any or all of the Purchaser’s
Unvested Shares by giving Purchaser written notice of exercise of the
Repurchase Option.


 


5.3           Calculation
of Repurchase Price.  The Company or
its assignee(s) shall have the option to repurchase from Purchaser (or from
Purchaser’s personal representative as the


 





















 


case may be) the Purchaser’s Unvested Shares at the Purchaser’s
original Purchase Price Per Share (as adjusted to reflect any stock split or
similar change in the capital structure of the Company as set forth in Section 15(a) of
the Plan) (the “Repurchase Price”).


 


5.4           Payment
of Repurchase Price.  The Repurchase
Price shall be payable, at the option of the Company or its assignee(s), by
check or by cancellation of all or a portion of any outstanding indebtedness
owed by Purchaser to the Company, or such assignee, or by any combination
thereof.  The Repurchase Price shall be
paid without interest within sixty (60) days after exercise of the Repurchase
Option.


 


5.5           Right
of Termination Unaffected.  Nothing
in this Agreement shall be construed to limit or otherwise affect in any manner
whatsoever the right or power of the Company to terminate Purchaser’s
employment or other relationship with the Company at any time for any reason or
no reason, with or without Cause.


 


6.             Rights as a Shareholder.  Subject to the terms and conditions of this
Agreement, Purchaser will have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Purchaser
delivers payment of the Purchase Price until such time as Purchaser disposes of
the Shares or the Company and/or its assignee(s) exercise(s) the Repurchase Option. 
Upon an exercise of the Repurchase Option, Purchaser will have no
further rights as a holder of the Shares so purchased upon such exercise, other
than the right to receive payment for the Shares so purchased in accordance
with the provisions of this Agreement, and Purchaser will promptly surrender
the stock certificate(s) evidencing the Shares so purchased to the Company for
transfer or cancellation.


 


7.             Escrow.  As security for Purchaser’s faithful
performance of this Agreement, Purchaser agrees, immediately upon receipt of
the stock certificate(s) evidencing the Shares, to deliver such certificate(s),
together with the Stock Powers executed by Purchaser and by Purchaser’s spouse,
if any (with the date and number of Shares left blank), to the Secretary of the
Company or other designee of the Company (the “Escrow Holder”),
who is hereby appointed to hold such certificate(s) and Stock Powers in escrow
and to take all such actions and to effectuate all such transfers and/or
releases of such Shares as are in accordance with the terms of this
Agreement.  Escrow Holder will act solely
for the Company as its agent and not as a fiduciary.  Purchaser and the Company agree that Escrow
Holder will not be liable to any party to this Agreement (or to any other
party) for any actions or omissions unless Escrow Holder is grossly negligent
or intentionally fraudulent in carrying out the duties of Escrow Holder under
this Agreement.  Escrow Holder may rely
upon any letter, notice or other document executed with any signature purported
to be genuine and may rely on the advice of counsel and obey any order of any
court with respect to the transactions contemplated by this Agreement.  The Shares will be released from escrow upon
termination of the Repurchase Option.


 


8.             Restrictive Legends and Stop-Transfer Orders.


 


Legends.  Purchaser understands and agrees that the
Company may place the legends set forth below or similar legends on any stock
certificate(s) evidencing the Shares, together with any legends that may be
required by state or federal securities laws and the Company’s Certificate of
Incorporation or Bylaws:


 





















 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A REPURCHASE OPTION
HELD BY THE ISSUER AND/OR ITS ASSIGNEE(S) AS SET FORTH IN A RESTRICTED STOCK
PURCHASE AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES.  THE SECURITIES MAY NOT BE TRANSFERRED
EXCEPT AS PERMITTED UNDER THE AGREEMENT. 
A COPY OF THE AGREEMENT MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF
THE ISSUER.


 


8.2           Stop-Transfer
Instructions.  Purchaser agrees that,
to ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate “stop-transfer” instructions to its transfer
agent.  The Company will 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 the owner of such Shares, or to accord the right to vote or pay dividends to
any purchaser or other transferee to whom such Shares have been transferred in
violation of any of the provisions of this Agreement.


 


8.3           Refusal to Transfer.  The Company will 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 have been so transferred.


 


9.             Tax Consequences.  PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER’S PURCHASE OR DISPOSITION OF
THE SHARES.  PURCHASER REPRESENTS (i) THAT
PURCHASER HAS CONSULTED WITH ANY TAX ADVISER THAT PURCHASER DEEMS ADVISABLE IN
CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND (ii) THAT
PURCHASER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.  Purchaser hereby acknowledges that Purchaser
has been informed that, unless an election is filed by the Purchaser with the
Internal Revenue Service (and, if necessary, the proper state taxing
authorities) within 30 days of the purchase of the Shares to be
effective, electing pursuant to Section 83(b) of the Internal Revenue
Code (and similar state tax provisions, if applicable) to be taxed currently on
any difference between the Purchase Price of the Shares and their Fair Market
Value on the date of purchase, there will be a recognition of taxable income to
the Purchaser, measured by the excess, if any, of the Fair Market Value of the
Vested Shares, at the time they cease to be Unvested Shares, over the Purchase
Price for such Shares.  Purchaser
represents that Purchaser has consulted any tax advisers Purchaser deems
advisable in connection with Purchaser’s purchase of the Shares and the filing
of the election under Section 83(b) and similar tax provisions.  A form of Election under Section 83(b) is
attached hereto as Exhibit 3 for reference.  PURCHASER HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION
AND PAYING ANY TAXES RESULTING FROM SUCH ELECTION OR FROM FAILURE TO FILE THE
ELECTION AND PAYING TAXES RESULTING FROM THE LAPSE OF THE REPURCHASE
RESTRICTIONS ON THE UNVESTED SHARES.


 


10.          Compliance with Laws and Regulations.  The issuance and transfer of the Shares will
be subject to and conditioned upon compliance by the Company and Purchaser with
all applicable state and federal laws and regulations and with all applicable
requirements of any


 





















 


stock exchange or automated
quotation system on which the Company’s Common Stock may be listed or quoted at
the time of such issuance or transfer.


 


11.          Successors and Assigns.  The Company may assign any of its rights
under this Agreement, including its rights to repurchase Shares under the
Repurchase Option.  This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the
Company.  Subject to the restrictions on
transfer herein set forth, this Agreement will be binding upon Purchaser and
Purchaser’s heirs, executors, administrators, legal representatives, successors
and assigns.


 


12.          Governing Law; Severability.  This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California as
such laws are applied to agreements between California
residents entered into and to be performed entirely within California,
excluding that body of laws pertaining to conflict of laws.  If any provision of this Agreement is
determined by a court of law to be illegal or unenforceable, then such
provision will be enforced to the maximum extent possible and the other
provisions will remain fully effective and enforceable.


 


13.          Notices.  Any notice required to be given or delivered
to the Company shall be in writing and addressed to the Corporate Secretary of
the Company at its principal corporate offices. 
Any notice required to be given or delivered to Purchaser shall be in
writing and addressed to Purchaser at the address indicated above or to such
other address as Purchaser may designate in writing from time to time to the
Company.  All notices shall be deemed
effectively given upon personal delivery, (i) three (3) days after
deposit in the United States mail by certified or registered mail (return
receipt requested), (ii) one (1) business day after its deposit with
any return receipt express courier (prepaid), or (iii) one (1) business
day after transmission by rapifax or telecopier.


 


14.          Further Instruments.  The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.


 


15.          Headings.  The captions and headings of this Agreement
are included for ease of reference only and will be disregarded in interpreting
or construing this Agreement.  All
references herein to Sections will refer to Sections of this Agreement.


 


16.          Entire Agreement.  The Plan and this Agreement, together with
all its Exhibits, constitute the entire agreement and understanding of the parties
with respect to the subject matter of this Agreement, and supersede all prior
understandings and agreements, whether oral or written, between the parties
hereto with respect to the specific subject matter hereof.


 


[Remainder of this Page Intentionally Left
Blank]


 





















 


IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed in
triplicate by its duly authorized representative and Purchaser has executed
this Agreement in triplicate as of the Effective Date.


 


 


	
  OPSWARE
  INC.

  	
   

  	
  PURCHASER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Please print
  name)

  	
   

  	
  (Please print
  name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Please print
  title)

  	
   

  	
   

  
				



 





















 


LIST OF EXHIBITS


 


	
  Exhibit 1:

  	
   

  	
  Spouse Consent

  
	
   

  	
   

  	
   

  
	
  Exhibit 2:

  	
   

  	
  Stock Power and
  Assignment Separate from Stock Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit 3:

  	
   

  	
  Election Under
  Section 83(b) of the Internal Revenue Code

  



 





















 


EXHIBIT 1


 


SPOUSE CONSENT


 





















 


Spouse Consent


 


The undersigned spouse of                     
(the “Purchaser”) has read,
understands, and hereby approves the Restricted Stock Purchase Agreement between
Purchaser and the Company (the “Agreement”).  In consideration of the Company’s granting my
spouse the right to purchase the Shares as set forth in the Agreement, the
undersigned hereby agrees to be irrevocably bound by the Agreement and further
agrees that any community property interest shall similarly be bound by the
Agreement.  The undersigned hereby
appoints Purchaser as my attorney-in-fact with respect to any amendment or
exercise of any rights under the Agreement.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name of
  Purchaser’s Spouse

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Please print
  name)

  	
   

  	
  Signature of
  Purchaser’s Spouse

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  
	
  (Please print
  title)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 





















 


EXHIBIT 2


 


 


STOCK POWER AND ASSIGNMENT SEPARATE FROM STOCK CERTIFICATE


 





















 


Stock Power and Assignment


Separate from Stock Certificate


 


FOR VALUE RECEIVED and
pursuant to that certain Restricted Stock Purchase Agreement dated as of                             
(the “Agreement”), the undersigned
hereby sells, assigns and transfers unto                                             ,
                                       
(                      )
shares of the Common Stock of Opsware Inc., a Delaware
corporation (the “Company”), standing in the
undersigned’s name on the books of the Company represented by Certificate
No(s).                              
delivered herewith, and does hereby irrevocably constitute and appoint the
Secretary of the Company, as the undersigned’s attorney-in-fact, with full
power of substitution, to transfer said stock on the books of the Company.  THIS ASSIGNMENT MAY ONLY BE USED AS
AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  



 


 


Instructions
to Purchaser: 
Please do not fill in any blanks other than the signature line.  The purpose of this Stock Power and
Assignment is to enable the Company and/or its assignee(s) to acquire the
shares upon exercise of its “Repurchase
Option” set forth in Section 5 of the Agreement between you and the
Company without requiring additional signatures from you.


 





















 


EXHIBIT 3


 


ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE


 





















 


Election Under Section 83(b) of the Internal Revenue Code


 


The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of
the Internal Revenue Code, as amended, to include in gross income for the
Taxpayer’s current taxable year the excess, if any, of the fair market value of
the property described below at the time of transfer over the amount paid for
such property, as compensation for services.


 


	
  1.

  	
   

  	
  TAXPAYER’S NAME:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TAXPAYER’S ADDRESS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOCIAL SECURITY
  NUMBER:

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  The property
  with respect to which the election is made is described as follows:                              shares
  of Common Stock of                                  ,
  a Delaware corporation (the “Company”), which is Taxpayer’s
  employer or the corporation for whom the Taxpayer performs services.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The date on
  which the shares were transferred was                             ,
            and this election is
  made for calendar year                 .

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The shares are
  subject to the following restrictions: The Company may repurchase all or a
  portion of the shares at the Taxpayer’s original purchase price under certain
  conditions at the time of Taxpayer’s termination of employment or services.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  The fair market
  value of the shares (without regard to restrictions other than restrictions
  which by their terms will never lapse) was $                       per share at the time of transfer.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  The amount paid
  for such shares was $                       per share.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  The Taxpayer has
  submitted a copy of this statement to the Company.

  



 


THIS ELECTION MUST BE
FILED WITH THE INTERNAL REVENUE SERVICE (“IRS”), AT THE OFFICE WHERE THE TAXPAYER FILES
ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS
AFTER THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE
TAXPAYER’S INCOME TAX RETURNS FOR THE CALENDAR YEAR.  THE ELECTION CANNOT BE REVOKED WITHOUT THE
CONSENT OF THE IRS.


 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
  Taxpayer’s
  Signature