Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made. (b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c). (c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c). (d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect thereto. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares. (e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement. (f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation. (g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares. (h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.” (i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 8 contracts
Samples: Non Qualified Stock Option Award Agreement (Qlik Technologies Inc), Non Qualified Stock Option Award Agreement (Qlik Technologies Inc), Non Qualified Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect thereto. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).forty
Appears in 2 contracts
Samples: Non Qualified Stock Option Award Agreement (Qlik Technologies Inc), Non Qualified Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect theretothereto and the Participant will procure that the third party transferee(s) shall adhere to and be bound by any such agreements or undertakings in force at the time of transfer with respect to any transfer or other restrictions that may be contained in any agreement among, or restricting the rights of, the Corporation’s Series A Common Stock stockholders. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect thereto. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).than
Appears in 1 contract
Samples: Non Qualified Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value Value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), . the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect thereto. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the ParticipantPaiticipant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. , COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Non Qualified Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect theretothereto and the Participant will procure that the third party transferee(s) shall adhere to and be bound by any such agreements or undertakings in force at the time of transfer with respect to any Transfer or other restrictions that may be contained in any agreement among, or restricting the rights of, the Corporation’s Common Stock stockholders. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (a) If at any time Subject to the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way limitations of any stock split, stock dividend, recapitalization or the likesubparagraph 6(b), then in the Participant shall promptly give event that, prior to the date of the first registration of an equity security of the Corporation advance written notice under Section 12 of the Participant’s intention Securities Exchange Act of 1934, Purchaser desires to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”)sell, (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet encumber or letter of intent or other agreement relating to the proposed Transfer. In the event that the otherwise transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying Stock received upon the Participant in writing before expiration exercise of such thirty (30) day period as Purchaser's Option, or any interest therein, Purchaser will be required to first give written notice of the intent to transfer to the Secretary of the Corporation. The notice will name the proposed transferee and state the number of such Offered Shares that shares of Stock to be transferred, the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such sharesproposed consideration, then payment for the Offered Shares shall be by check or wire transfer, against delivery and all other terms and conditions of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60proposed transfer. The Corporation and/or its assignee(s) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall will have the right to pay (the purchase price in the form "Right of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value First Refusal") at any time within thirty (30) days after receipt by the Corporation of such notice to purchase any portion of the Transfer NoticeStock specified in the notice at the price and upon the terms set forth in such notice (the "Notice Price"). In the case of a gift, property settlement or other transfer in which the proposed transferee is not paying the full price for the shares, the valuation shall price will be made by an appraiser of recognized standing in deemed to be the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the fair market value of the purchase price offered Stock at such time as determined in good faith by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to Board of Directors. In the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that event the Corporation has not exercised and/or its right assignee(s) elects to purchase all or any portion of the Offered Shares Stock, it will provide Purchaser with written notice of its election and cash payment at the Notice Price within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from after receipt of the expiration transfer notice. If, however, the terms of such right payment set forth in which to sell the Offered Sharestransfer notice were other than cash against delivery, upon the Corporation and/or its assignee(s) will pay for the Stock on the same terms and conditions (including the purchase price) no more favorable than those specified as set forth in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect theretotransfer notice. In the event the Participant does Corporation and/or its assignee(s) do not consummate the sale or disposition elect to acquire all of the Offered Shares shares specified in the transfer notice, Purchaser may, within the thirty sixty (30) day 60)-day period from following the expiration of this right, the Corporation’s first refusal right shall 's Right of First Refusal, transfer any portion of the Stock specified in the notice which was not acquired by the Corporation and/or its assignee(s) on the terms specified in the original notice. All shares so sold by Purchaser will continue to be applicable subject to any subsequent disposition of the Offered Shares by same restrictions as before the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Sharestransfer.
(eb) Notwithstanding The following transactions shall be exempt from the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: subparagraph 6(a): (i) the Transfer Purchaser's transfer of Award Shares any or all shares held either during such Purchaser's lifetime or on death by will or intestacy to such Purchaser's immediate family or to any spouse custodian or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse such Purchaser or members of the Participant’s such Purchaser's immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or family and (ii) Purchaser's bona fide pledge or mortgage of any sale shares with a commercial lending institution, provided that any subsequent transfer of Award Shares said shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that said institution shall be conducted in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).manner set forth in
Appears in 1 contract
Samples: Early Exercise Stock Purchase Agreement (Vixel Corp)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect theretothereto and the Participant will procure that the third party transferee(s) shall adhere to and be bound by any such agreements or undertakings in force at the time of transfer with respect to any Transfer or other restrictions that may be contained in any agreement among, or restricting the rights of, the Corporation’s Series A Common Stock stockholders. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Stock Option Award Agreement (Qlik Technologies Inc)
Corporation’s Right of First Refusal. (aA) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant Subject to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b9.2(D) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtednessbelow, the Corporation shall have the right of first refusal to pay purchase all (or any part) of any Preferred Stock or Common Stock into which the purchase price in Preferred Stock has been converted (collectively, for the form purposes of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Noticethis Section 9.2 only, the valuation shall be made by an appraiser of recognized standing in "Securities") that the United States selected by the Participant and the Corporation orInvestor or any Affiliate may, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Noticefrom time to time, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior propose to the tenth business day after such valuation shall have been made pursuant to this Section 7(c)sell.
(dB) To In the extent event that the Investor or any Affiliate proposes to sell any of the Securities, at least thirty-one (31) days before such sale, it shall deliver to the Corporation has not exercised written notice of its right intention, describing in such notice the price at, and the general terms upon, which the Investor or Affiliate proposes to purchase sell the Offered Shares within the time periods specified in Section 7(b), the Participant New Securities. The Corporation shall have a period of thirty twenty (3020) days from the expiration date of its receipt of any such notice to agree to purchase all (but not less than all) of such right in which to sell Securities for the Offered Shares, price and upon the general terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, notice by giving written notice to the third-party transferee(sInvestor.
(C) identified In the event that the Corporation fails to exercise in full the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal within said twenty (20) day period, the Investor may proceed with the sale of the Securities, provided that such sale shall be at a price and upon general terms no more favorable to the purchaser than specified in the Investor's notice under this Agreement and must agree in writing to be bound with respect theretoSection 9.2(B) . In the event the Participant does Investor has not consummate so sold the sale or disposition of the Offered Shares Securities within the thirty said ninety (3090) day period from the expiration of this rightperiod, the Corporation’s Investor shall not thereafter sell any Securities, without first refusal right shall continue offering such Securities to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase in the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Sharesmanner set forth above.
(eD) Notwithstanding the provisions of Sections 7(a9.2(A), (B), and (C) and 7(b) of this Agreementnotwithstanding, the first refusal right of the Corporation shall not apply to: have no right of first refusal hereunder with respect to (i) any sales or transfers of Securities between and among the Transfer of Award Shares to any spouse or member of the Participant’s immediate familyInvestor and/or its Affiliates, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares less than five percent (5%) of the Securities then held by the Investor and its Affiliates (counting the shares of Preferred Stock according to the public pursuant to ratio at which they are convertible into Common Stock) in a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event private sale of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting itSecurities, and (Biii) each any sale of less than ten percent (10%) of such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares securities in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreementsale other than a private sale.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Stock Purchase Agreement (Enron Capital & Trade Resources Corp)
Corporation’s Right of First Refusal. (a) If at any time a holder of Class A Common Stock receives a bona fide offer to purchase such shares and desires to sell any of such shares (other than through the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or limited market maintained by way of any stock split, stock dividend, recapitalization or the likeCorporation), then such holder shall first give notice to the Participant shall promptly give Secretary of the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: containing:
(i) a description A statement signed by such holder notifying the Corporation that such holder desires to sell shares of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) Class A Common Stock and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer to purchase such shares.
(ii) A statement signed by the intended purchaser containing:
a) the intended purchaser’s full name, address and taxpayer identification number;
b) the number of shares to be purchased;
c) the price per share to be paid;
d) other terms under which the purchase is intended to be made; and
e) a representation that the offer, under the terms specified, is bona fide.
(iii) If the purchase price is payable in cash, in whole or in part, a copy of a certified check, cashier’s check or money order payable to such holder from the prospective transferee(spurchaser in the aggregate amount of the purchase price which is to be paid in cash. The Corporation shall thereupon have an option exercisable within fourteen (14) days of receipt of such notice by the secretary to purchase all, but not less than all, of the shares specified in the notice at the lesser of (a) the Formula Price (as hereinafter defined) per share following receipt of the notice from the holder, or (b) the offer price and in good faith believes a binding agreement for upon the Transfer is obtainable on the same terms as set forth in the Transfer Notice. The Transfer Notice notice, accompanied by payment of the purchase price; provided, however, that if the offer price is payable, in whole or in part, other than in cast, the Corporation shall also include a copy pay the equivalent value of any noncash consideration as mutually agreed upon between the holder and the Corporation. Such option shall be exercised by the Corporation by mailing written proposal, term sheet notice to such holder at his or letter her address of intent or other agreement relating to record on the proposed TransferCorporation’s stock record books. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may does not exercise such purchase option and purchase all or any portion of option, such holder may sell the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price shares specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value notice within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior thereafter to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To purchaser, at the extent that price and upon the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Noticeset forth therein. The third-party transferee(s) shall acquire the Offered Shares subject holder may not sell such shares to any other purchaser, or at any different price, or on any different terms, without first reoffering such shares to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect thereto. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered Shares.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Sale Agreement (Qad Inc)
Corporation’s Right of First Refusal. (a) If at any time the Participant proposes to Transfer (as defined in Section 7(g) below) any Award Shares (including, without limitation, any securities acquired upon conversion thereof or by way of any stock split, stock dividend, recapitalization or the like), then the Participant shall promptly give the Corporation advance written notice of the Participant’s intention to make the Transfer (the “Transfer Notice”). The Transfer Notice shall include: (i) a description of the Award Shares to be transferred (the “Offered Shares”), (ii) the name(s) and address(es) of the prospective transferee(s), (iii) the consideration, and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Participant has received a bona fide firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. In the event that the transfer is being made pursuant to the provisions of Section 7(e), the Transfer Notice shall state under which specific subsection the Transfer is being made.
(b) The Corporation shall have the right, but not the obligation, for a period of thirty (30) days from receipt by the Corporation of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Corporation may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying the Participant in writing before expiration of such thirty (30) day period as to the number of such Offered Shares that the Corporation wishes to purchase. If the Corporation gives the Participant notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing thereforthereof, which shall be no later than sixty (60) days after receipt by the Corporation of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third-party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 7(c).
(c) Should the purchase price specified in the Transfer Notice be payable in property other than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase price in the form of cash equal in amount to the fair market value of such property. If the Participant and the Corporation cannot agree on such cash value within thirty (30) days after receipt by the Corporation of the Transfer Notice, the valuation shall be made by an appraiser of recognized standing in the United States selected by the Participant and the Corporation or, if they cannot agree on an appraiser within forty (40) days after receipt by the Corporation of the Transfer Notice, each shall select an appraiser of recognized standing in the United States and those appraisers shall designate a third appraiser of recognized standing in the United States, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Participant and the Corporation. If the time for the closing of the Corporation’s purchase has expired but the determination of the value of the purchase price offered by the prospective transferee(s) has not been finalized, then such closing shall be held on or prior to the tenth business day after such valuation shall have been made pursuant to this Section 7(c).
(d) To the extent that the Corporation has not exercised its right to purchase the Offered Shares within the time periods specified in Section 7(b), the Participant shall have a period of thirty (30) days from the expiration of such right in which to sell the Offered Shares, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Offered Shares subject to the Corporation’s continued right of first refusal under this Agreement and must agree in writing to be bound with respect thereto. In the event the Participant does not consummate the sale or disposition of the Offered Shares within the thirty (30) day period from the expiration of this right, the Corporation’s first refusal right shall continue to be applicable to any subsequent disposition of the Offered Shares by the Participant until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or non-exercise of the right of the Corporation under this Section 7 to purchase the Offered Shares from the Participant shall not adversely affect its right to make subsequent purchases from the Participant of Offered SharesSecurities.
(e) Notwithstanding the provisions of Sections 7(a) and 7(b) of this Agreement, the first refusal right of the Corporation shall not apply to: (i) the Transfer of Award Shares to any spouse or member of the Participant’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Participant’s spouse or members of the Participant’s immediate family, or to a trust for the Participant’s own self, or a charitable remainder trust, or (ii) any sale of Award Shares to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act; provided, however, that in the event of any Transfer transfer made pursuant to one of the exemptions provided by clause (e)(i): (A) the Participant shall inform the Corporation in writing of such Transfer prior to effecting it, and (B) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Participant under this Agreement with respect to the transferred Award Shares in a form approved by the Corporation. Such transferred Award Shares shall remain subject to the provisions of this Section 7, and such pledgee, transferee or donee shall be treated as the “Participant” for purposes of this Agreement.
(f) Except as otherwise provided in this Agreement, the Participant will not sell, assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any way, all of any part of or any interest in the Award Shares. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Award Shares not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Corporation and shall not be recognized by the Corporation.
(g) For purposes of this Section 7, the term “Transfer” shall include any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers pursuant to divorce or legal separation, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary, involuntarily or by operation of law, directly or indirectly, of any of the Award Shares.
(h) All certificates representing the Award Shares, in addition to other legends that may be required by applicable law or pursuant to agreement of the Corporation’s stockholders, shall bear the following legend: “THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NON-QUALIFIED STOCK OPTION AWARD AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
(i) The Corporation’s first refusal right hereunder shall terminate and be of no further force or effect upon the earlier of: (i) the consummation of a bona fide, firmly underwritten public offering of shares of the Corporation’s common stock at a public offering price which is not less than $3.15 per share (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) and greater than $30,000,000.00 in the aggregate, or (ii) the consummation of a Liquidation Event, as that term is defined in the Corporation’s Certificate of Incorporation (as amended from time to time).
Appears in 1 contract
Samples: Non Qualified Stock Option Award Agreement (Qlik Technologies Inc)
