Purchase of Option Shares. (a) In the event that the Termination Date occurs for any reason prior to an Initial Public Offering or an Approved Sale, the Option Shares shall be subject to repurchase as follows: (i) Issuer, during the sixty (60) days following the later of the Termination Date or the date upon which Optionee gives notice in accordance with Section 7 hereof of his election to exercise all or a part of the portion of the Option vested at the Termination Date (the "Repurchase Period"), shall have the right to purchase all, but not less than all, of the Option Shares owned by Optionee on the Termination Date or to be acquired by Optionee pursuant to such notice of exercise. (ii) In the event that Optionee becomes entitled to acquire Option Shares after the Termination Date, Issuer may notify Optionee in accordance with Section 9(b) hereof that Issuer will purchase any Option Shares that Optionee may thereafter acquire upon the exercise of the Option and shall set the Purchase Date (as hereinafter defined) and shall purchase such Option Shares, if any, pursuant to the terms of this Agreement. (iii) The purchase price (the "Repurchase Price") for each Option Share shall be Fair Market Value, provided, however, that in the case of Option Shares purchased by Optionee during the 90-day period immediately preceding the Purchase Date, if no material adverse change in the business or financial condition of the Employer occurs during such 90-day period, the purchase price shall be the greater of Fair Market Value or the per share exercise price paid by Optionee upon his acquisition of the Option Share. (iv) If Issuer elects to purchase the Option Shares, it shall notify Optionee at or before the end of the Repurchase Period and the Repurchase Price shall be paid in cash at a time set by Issuer which time shall be within thirty (30) days after the end of the Repurchase Period (the "Purchase Date"), provided that Optionee has presented to Issuer an Endorsed Certificate. (v) The Option Shares shall be transferred to Issuer free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions, prior assignments and claims of any kind or nature whatsoever except those created by the Restated Certificate of Incorporation or this Agreement. If Issuer does not purchase the Option Shares, the restrictions on transfer thereof contained in Sections 5 and 8 of this Agreement shall terminate and be of no further force and effect. Notwithstanding Optionee's failure to deliver the Endorsed Certificate, the Option Shares represented thereby shall be deemed to be owned by Issuer upon (A) the payment by Issuer of the purchase price to Optionee or his or her Permitted Transferee or (B) notice to Optionee or such Permitted Transferee that Issuer is holding the purchase price in the United States for the account of Optionee or such Permitted Transferee, and upon such payment or notice (x) Optionee and such Permitted Transferee will have no further rights in or to such Option Shares, (y) Issuer shall be entitled to specific performance of Optionee's or such Permitted Transferee's obligation to deliver such Endorsed Certificates, and (z) Optionee and his or her Permitted Transferee shall be jointly and severally liable for all reasonable attorneys' fees and other costs and expenses incurred by Issuer in enforcing its right to repurchase the Option Shares hereunder and shall pay to Issuer promptly upon demand the amount of all such fees and expenses. (b) In the event an unvested portion of the Option becomes exercisable pursuant to Section 4(b), for purposes of Section 9(a), the Repurchase Period shall commence as of the date notice of the Option's exercisability is provided to Optionee. (c) The Fair Market Value shall be determined in good faith by Issuer's Board of Directors. If the Board determination is challenged by Optionee, a mutually acceptable investment banker or appraiser shall establish the Fair Market Value. If Optionee and Issuer cannot agree upon an investment banker or appraiser each shall choose an investment banker or appraiser and the two investment bankers or appraisers shall choose a third investment banker or appraiser who alone shall establish the Fair Market Value. The Fair Market Value shall be based on an assumed sale of 100% of the outstanding capital stock of Issuer (without reduction for minority discount or lack of liquidity of the Option Shares) and shall be determined using customary criteria generally employed within the investment banking community at the time such determination is made for valuing an entity similar to Issuer. The investment banker's or appraiser's determination shall be conclusive and binding on Shareholder, Issuer and Optionee. Issuer shall bear all costs incurred in connection with the services of such investment banker or appraiser unless the Fair Market Value established by the investment banker or appraiser is (i) less than or equal to 110% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for such costs or (ii) greater than 110% but less than 130% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for 50% of such costs. (d) For so long as Optionee or his or her Permitted Transferee owns the Option Shares, Issuer agrees that it shall, upon the written request of Optionee, provide Optionee with annual financial statements of Issuer promptly upon the completion of the preparation of such statements. The annual financial statements shall be accompanied by an audit report by Issuer's independent accountants.
Appears in 1 contract
Purchase of Option Shares. (a) In the event that the Termination Date occurs for any reason prior to an Initial Public Offering or an Approved Sale, the Option Shares shall be subject to repurchase as follows:: JENKXXX XXXCK OPTION AGREEMENT (TRAK) 6
(i) Issuer, during the sixty (60) days following the later of the Termination Date or the date upon which Optionee gives notice in accordance with Section 7 hereof of his election to exercise all or a part of the portion of the Option vested at the Termination Date (the "Repurchase Period"), shall have the right to purchase all, but not less than all, of the Option Shares owned by Optionee on the Termination Date or to be acquired by Optionee pursuant to such notice of exercise.
(ii) In the event that Optionee becomes entitled to acquire Option Shares after the Termination Date, Issuer may notify Optionee in accordance with Section 9(b) hereof that Issuer will purchase any Option Shares that Optionee may thereafter acquire upon the exercise of the Option and shall set the Purchase Date (as hereinafter defined) and shall purchase such Option Shares, if any, pursuant to the terms of this Agreement.
(iii) The purchase price (the "Repurchase Price") for each Option Share shall be Fair Market Value, provided, however, that in the case of Option Shares purchased by Optionee during the 90-day period immediately preceding the Purchase Date, if no material adverse change in the business or financial condition of the Employer occurs during such 90-day period, the purchase price shall be the greater of Fair Market Value or the per share exercise price paid by Optionee upon his acquisition of the Option Share.
(iv) If Issuer elects to purchase the Option Shares, it shall notify Optionee at or before the end of the Repurchase Period and the Repurchase Price shall be paid in cash at a time set by Issuer which time shall be within thirty (30) days after the end of the Repurchase Period (the "Purchase Date"), provided that Optionee has presented to Issuer an Endorsed Certificate.
(v) The Option Shares shall be transferred to Issuer free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions, prior assignments and claims of any kind or nature whatsoever except those created by the Restated Certificate of Incorporation or this Agreement. If Issuer does not purchase the Option Shares, the restrictions on transfer thereof contained in Sections 5 and 8 of this Agreement shall terminate and be of no further force and effect. Notwithstanding Optionee's failure to deliver the Endorsed Certificate, the Option Shares represented thereby shall be deemed to be owned by Issuer upon (A) the payment by Issuer of the purchase price to Optionee or his or her Permitted Transferee or (B) notice to Optionee or such Permitted Transferee that Issuer is holding the purchase price in the United States for the account of Optionee or such Permitted Transferee, and upon such payment or notice (x) Optionee and such Permitted Transferee will have no further rights in or to such Option Shares, (y) Issuer shall be entitled to specific performance of Optionee's or such Permitted Transferee's obligation to deliver such Endorsed Certificates, and (z) Optionee and his or her Permitted Transferee shall be jointly and severally liable for all reasonable attorneys' fees and other costs and expenses incurred by Issuer in enforcing its right to repurchase the Option Shares hereunder and shall pay to Issuer promptly upon demand the amount of all such fees and expenses.. JENKXXX XXXCK OPTION AGREEMENT (TRAK) 7
(b) In the event an unvested portion of the Option becomes exercisable pursuant to Section 4(b), for purposes of Section 9(a), the Repurchase Period shall commence as of the date notice of the Option's exercisability is provided to Optionee.
(c) The Fair Market Value shall be determined in good faith by Issuer's Board of Directors. If the Board determination is challenged by Optionee, a mutually acceptable investment banker or appraiser shall establish the Fair Market Value. If Optionee and Issuer cannot agree upon an investment banker or appraiser each shall choose an investment banker or appraiser and the two investment bankers or appraisers shall choose a third investment banker or appraiser who alone shall establish the Fair Market Value. The Fair Market Value shall be based on an assumed sale of 100% of the outstanding capital stock of Issuer (without reduction for minority discount or lack of liquidity of the Option Shares) and shall be determined using customary criteria generally employed within the investment banking community at the time such determination is made for valuing an entity similar to Issuer. The investment banker's or appraiser's determination shall be conclusive and binding on Shareholder, Issuer and Optionee. Issuer shall bear all costs incurred in connection with the services of such investment banker or appraiser unless the Fair Market Value established by the investment banker or appraiser is (i) less than or equal to 110% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for such costs or (ii) greater than 110% but less than 130% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for 50% of such costs.
(d) For so long as Optionee or his or her Permitted Transferee owns the Option Shares, Issuer agrees that it shall, upon the written request of Optionee, provide Optionee with annual financial statements of Issuer promptly upon the completion of the preparation of such statements. The annual financial statements shall be accompanied by an audit report by Issuer's independent accountants.
Appears in 1 contract
Purchase of Option Shares. (a) In For the event that purposes of covering any over-allotments in connection with the Termination Date occurs for any reason prior to an Initial Public Offering or an Approved Saledistribution and sale of the Firm Shares, the Underwriter is hereby granted an option to purchase in the aggregate, up to 562,055 Option Shares shall be subject to repurchase as follows:
(i) Issuer, during the sixty (60) days following the later “Over-Allotment Option”). In connection with an exercise of the Termination Date Over-Allotment Option, the purchase price to be paid for each Option Share will be the Firm Share Purchase Price. The Over-Allotment Option granted pursuant to this Section 1(b) may be exercised by the Underwriter as to all (at any time) or the date upon which Optionee gives notice in accordance with Section 7 hereof of his election any part (from time to exercise all or a part of the portion of the Option vested at the Termination Date (the "Repurchase Period"), shall have the right to purchase all, but not less than all, time) of the Option Shares owned by Optionee on the Termination Date or to be acquired by Optionee pursuant to such notice of exercise.
(ii) In the event that Optionee becomes entitled to acquire Option Shares within 45 days after the Termination Date, Issuer may notify Optionee in accordance with Section 9(b) hereof that Issuer date hereof. The Underwriter will not be under any obligation to purchase any Option Shares that Optionee may thereafter acquire upon prior to the exercise of the Over-Allotment Option by the Underwriter. The Over-Allotment Option granted hereby may be exercised by the giving of written notice to the Company from the Underwriter (each, an “Option Notice”), setting forth the number of Option Shares to be purchased and shall set the Purchase Date date and time for delivery of and payment for the Option Shares (each, an “Option Closing Date”), which will not be later than three (3) business days after the date of the notice (as hereinafter definedsoon as one (1) business day after the date of the notice, unless such notice is given prior to the Closing Date, then the Closing Date) or such other time as shall be agreed upon by the Company and the Underwriter, at such place (including remotely by facsimile or other electronic transmission) as shall purchase be agreed upon by the Company and the Underwriter. If such delivery and payment for the Option SharesShares does not occur on the Closing Date, if anyeach Option Closing Date will be as set forth in the Option Notice. Upon exercise of the Over-Allotment Option, pursuant the Company will become obligated to convey to the Underwriter, and, subject to the terms of this Agreement.
(iii) The purchase price (and conditions set forth herein, the "Repurchase Price") for each Option Share shall be Fair Market ValueUnderwriter will become obligated to purchase, provided, however, that in the case number of Option Shares purchased by Optionee during specified in such Option Notice. The Underwriter may cancel the 90Over-day period immediately preceding Allotment Option at any time prior to the Purchase Date, if no material adverse change in the business or financial condition expiration of the Employer occurs during such 90Over-day period, the purchase price shall be the greater of Fair Market Value or the per share exercise price paid Allotment Option by Optionee upon his acquisition of the Option Share.
(iv) If Issuer elects to purchase the Option Shares, it shall notify Optionee at or before the end of the Repurchase Period and the Repurchase Price shall be paid in cash at a time set by Issuer which time shall be within thirty (30) days after the end of the Repurchase Period (the "Purchase Date"), provided that Optionee has presented to Issuer an Endorsed Certificate.
(v) The Option Shares shall be transferred to Issuer free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions, prior assignments and claims of any kind or nature whatsoever except those created by the Restated Certificate of Incorporation or this Agreement. If Issuer does not purchase the Option Shares, the restrictions on transfer thereof contained in Sections 5 and 8 of this Agreement shall terminate and be of no further force and effect. Notwithstanding Optionee's failure to deliver the Endorsed Certificate, the Option Shares represented thereby shall be deemed to be owned by Issuer upon (A) the payment by Issuer of the purchase price to Optionee or his or her Permitted Transferee or (B) written notice to Optionee or such Permitted Transferee that Issuer is holding the purchase price in the United States for the account of Optionee or such Permitted Transferee, and upon such payment or notice (x) Optionee and such Permitted Transferee will have no further rights in or to such Option Shares, (y) Issuer shall be entitled to specific performance of Optionee's or such Permitted Transferee's obligation to deliver such Endorsed Certificates, and (z) Optionee and his or her Permitted Transferee shall be jointly and severally liable for all reasonable attorneys' fees and other costs and expenses incurred by Issuer in enforcing its right to repurchase the Option Shares hereunder and shall pay to Issuer promptly upon demand the amount of all such fees and expensesCompany.
(b) In the event an unvested portion of the Option becomes exercisable pursuant to Section 4(b), for purposes of Section 9(a), the Repurchase Period shall commence as of the date notice of the Option's exercisability is provided to Optionee.
(c) The Fair Market Value shall be determined in good faith by Issuer's Board of Directors. If the Board determination is challenged by Optionee, a mutually acceptable investment banker or appraiser shall establish the Fair Market Value. If Optionee and Issuer cannot agree upon an investment banker or appraiser each shall choose an investment banker or appraiser and the two investment bankers or appraisers shall choose a third investment banker or appraiser who alone shall establish the Fair Market Value. The Fair Market Value shall be based on an assumed sale of 100% of the outstanding capital stock of Issuer (without reduction for minority discount or lack of liquidity of the Option Shares) and shall be determined using customary criteria generally employed within the investment banking community at the time such determination is made for valuing an entity similar to Issuer. The investment banker's or appraiser's determination shall be conclusive and binding on Shareholder, Issuer and Optionee. Issuer shall bear all costs incurred in connection with the services of such investment banker or appraiser unless the Fair Market Value established by the investment banker or appraiser is (i) less than or equal to 110% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for such costs or (ii) greater than 110% but less than 130% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for 50% of such costs.
(d) For so long as Optionee or his or her Permitted Transferee owns the Option Shares, Issuer agrees that it shall, upon the written request of Optionee, provide Optionee with annual financial statements of Issuer promptly upon the completion of the preparation of such statements. The annual financial statements shall be accompanied by an audit report by Issuer's independent accountants.
Appears in 1 contract
Purchase of Option Shares. (a) In the event that the Termination Date occurs for any reason prior to an Initial Public Offering or an Approved Sale, the Option Shares shall be subject to repurchase as follows:
(i) Issuer, during the sixty (60) days following the later of the Termination Date or the date upon which Optionee gives notice in accordance with Section 7 hereof of his election to exercise all or a part of the portion of the Option vested at the Termination Date (the "Repurchase Period"), shall have the right to purchase all, but not less than all, of the Option Shares owned by Optionee on the Termination Date or to be acquired by Optionee pursuant to such notice of exercise.
(ii) In the event that Optionee becomes entitled to acquire Option Shares after the Termination Date, Issuer may notify Optionee in accordance with Section 9(b) hereof that Issuer will purchase any Option Shares that Optionee may thereafter acquire upon the exercise of the Option and shall set the Purchase Date (as hereinafter defined) and shall purchase such Option Shares, if any, pursuant to the terms of this Agreement.
(iii) The purchase price (the "Repurchase Price") for each Option Share shall be Fair Market Value, provided, however, that in the case of Option Shares purchased by Optionee during the 90-day period immediately preceding the Purchase Date, if no material adverse change in the business or financial condition of the Employer occurs during such 90-day period, the purchase price shall be the greater of Fair Market Value or the per share exercise price paid by Optionee upon his acquisition of the Option Share.
(iv) If Issuer elects to purchase the Option Shares, it shall notify Optionee at or before the end of the Repurchase Period and the Repurchase Price shall be paid in cash at a time set by Issuer which time shall be within thirty (30) days after the 8 9 end of the Repurchase Period (the "Purchase Date"), provided that Optionee has presented to Issuer an Endorsed Certificate.
(v) The Option Shares shall be transferred to Issuer free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions, prior assignments and claims of any kind or nature whatsoever except those created by the Restated Certificate of Incorporation or this Agreement. If Issuer does not purchase the Option Shares, the restrictions on transfer thereof contained in Sections 5 and 8 of this Agreement shall terminate and be of no further force and effect. Notwithstanding Optionee's failure to deliver the Endorsed Certificate, the Option Shares represented thereby shall be deemed to be owned by Issuer upon (A) the payment by Issuer of the purchase price to Optionee or his or her Permitted Transferee or (B) notice to Optionee or such Permitted Transferee that Issuer is holding the purchase price in the United States for the account of Optionee or such Permitted Transferee, and upon such payment or notice (x) Optionee and such Permitted Transferee will have no further rights in or to such Option Shares, (y) Issuer shall be entitled to specific performance of Optionee's or such Permitted Transferee's obligation to deliver such Endorsed Certificates, and (z) Optionee and his or her Permitted Transferee shall be jointly and severally liable for all reasonable attorneys' fees and other costs and expenses incurred by Issuer in enforcing its right to repurchase the Option Shares hereunder and shall pay to Issuer promptly upon demand the amount of all such fees and expenses.
(b) In the event an unvested portion of the Option becomes exercisable pursuant to Section 4(b), for purposes of Section 9(a), the Repurchase Period shall commence as of the date notice of the Option's exercisability is provided to Optionee.
(c) The Fair Market Value shall be determined in good faith by Issuer's Board of DirectorsDirectors as of the first day of the Repurchase Period. If the Board determination is challenged by Optionee, a mutually acceptable investment banker or appraiser shall establish the Fair Market Value. If Optionee and Issuer cannot agree upon an investment banker or appraiser each shall choose an investment banker or appraiser and the two investment bankers or appraisers shall choose a third investment banker or appraiser who alone shall establish the Fair Market Value. The Fair Market Value shall be based on an assumed sale of 100% of the outstanding capital stock of Issuer (without reduction for minority discount or lack of liquidity of the Option Shares) and shall be determined using customary criteria generally employed within the investment banking community at the time such determination is made for valuing an entity similar to Issuer. The investment banker's or appraiser's determination shall be conclusive and binding on Shareholder, Issuer and Optionee. Issuer shall bear all costs incurred in connection with the services of such investment banker or appraiser unless the Fair Market Value established by the investment banker or appraiser is (i) less than or equal to 110% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for such costs or (ii) greater than 110% but less than 130% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for 50% of such costs.
(d) For so long as Optionee or his or her Permitted Transferee owns the Option Shares, Issuer agrees that it shall, upon the written request of Optionee, provide Optionee with annual financial statements of Issuer promptly upon the completion of the preparation of such statements. The annual financial statements shall be accompanied by an audit report by Issuer's independent accountants.Optionee
Appears in 1 contract
Purchase of Option Shares. (a) In For the event that purposes of covering any over-allotments in connection with the Termination Date occurs for any reason prior to an Initial Public Offering or an Approved Saledistribution and sale of the Firm Shares, the Co-Representatives are hereby granted an option to purchase, severally and not jointly, in the aggregate, up to Option Shares shall be subject to repurchase as follows:
(i) Issuer, during the sixty (60) days following the later “Over-Allotment Option”). In connection with an exercise of the Termination Date Over-Allotment Option, the purchase price to be paid for each Option Share will be the Firm Share Purchase Price. The Over-Allotment Option granted pursuant to this Section 1(b) may be exercised by the Co-Representatives as to all (at any time) or the date upon which Optionee gives notice in accordance with Section 7 hereof of his election any part (from time to exercise all or a part of the portion of the Option vested at the Termination Date (the "Repurchase Period"), shall have the right to purchase all, but not less than all, time) of the Option Shares owned by Optionee on the Termination Date or to be acquired by Optionee pursuant to such notice of exercise.
(ii) In the event that Optionee becomes entitled to acquire Option Shares within 45 days after the Termination Date, Issuer may notify Optionee in accordance with Section 9(b) hereof that Issuer date hereof. An Underwriter will not be under any obligation to purchase any Option Shares that Optionee may thereafter acquire upon prior to the exercise of the Over-Allotment Option by the Co-Representatives. The Over-Allotment Option granted hereby may be exercised by the giving of written notice to the Company from the Co-Representatives (each, an “Option Notice”), setting forth the number of Option Shares to be purchased and shall set the Purchase Date date and time for delivery of and payment for the Option Shares (each, an “Option Closing Date”), which will not be later than three (3) business days after the date of the notice (as hereinafter definedsoon as one (1) business day after the date of the notice, unless such notice is given prior to the Closing Date, then the Closing Date) or such other time as shall be agreed upon by the Company and the Co-Representatives, at such place (including remotely by facsimile or other electronic transmission) as shall purchase be agreed upon by the Company and the Co-Representatives. If such delivery and payment for the Option SharesShares does not occur on the Closing Date, if anyeach Option Closing Date will be as set forth in the Option Notice. Upon exercise of the Over-Allotment Option, pursuant the Company will become obligated to convey to the Underwriters, and, subject to the terms of this Agreement.
(iii) The purchase price (and conditions set forth herein, the "Repurchase Price") for each Option Share shall be Fair Market ValueUnderwriters will become obligated to purchase, provided, however, that in the case number of Option Shares specified in such Option Notice. The Co-Representatives may cancel the Over-Allotment Option at any time prior to the expiration of the Over-Allotment Option by written notice to the Company. Upon exercise of the Over-Allotment Option, the number of Option Shares to be purchased by Optionee during the 90-day period immediately preceding the Purchase Date, if no material adverse change in the business or financial condition of the Employer occurs during such 90-day period, the purchase price each Underwriter shall be the greater same percentage of Fair Market Value or the per share exercise price paid by Optionee upon his acquisition total number of shares of the Option Share.
(iv) If Issuer elects Shares to purchase be purchased by the Option several Underwriters as such Underwriter is purchasing of the Firm Shares, it shall notify Optionee at or before the end of the Repurchase Period and the Repurchase Price shall be paid in cash at a time set by Issuer which time shall be within thirty (30) days after the end of the Repurchase Period (the "Purchase Date"), provided that Optionee has presented to Issuer an Endorsed Certificate.
(v) The Option Shares shall be transferred to Issuer free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions, prior assignments and claims of any kind or nature whatsoever except those created by the Restated Certificate of Incorporation or this Agreement. If Issuer does not purchase the Option Shares, the restrictions on transfer thereof contained in Sections 5 and 8 of this Agreement shall terminate and be of no further force and effect. Notwithstanding Optionee's failure to deliver the Endorsed Certificate, the Option Shares represented thereby shall be deemed to be owned by Issuer upon (A) the payment by Issuer of the purchase price to Optionee or his or her Permitted Transferee or (B) notice to Optionee or such Permitted Transferee that Issuer is holding the purchase price in the United States for the account of Optionee or such Permitted Transferee, and upon such payment or notice (x) Optionee and such Permitted Transferee will have no further rights in or subject to such Option Shares, (y) Issuer adjustments as the Co-Representatives in their sole discretion shall be entitled make to specific performance of Optionee's or such Permitted Transferee's obligation to deliver such Endorsed Certificates, and (z) Optionee and his or her Permitted Transferee shall be jointly and severally liable for all reasonable attorneys' fees and other costs and expenses incurred by Issuer in enforcing its right to repurchase the Option Shares hereunder and shall pay to Issuer promptly upon demand the amount of all such fees and expenseseliminate fractional shares.
(b) In the event an unvested portion of the Option becomes exercisable pursuant to Section 4(b), for purposes of Section 9(a), the Repurchase Period shall commence as of the date notice of the Option's exercisability is provided to Optionee.
(c) The Fair Market Value shall be determined in good faith by Issuer's Board of Directors. If the Board determination is challenged by Optionee, a mutually acceptable investment banker or appraiser shall establish the Fair Market Value. If Optionee and Issuer cannot agree upon an investment banker or appraiser each shall choose an investment banker or appraiser and the two investment bankers or appraisers shall choose a third investment banker or appraiser who alone shall establish the Fair Market Value. The Fair Market Value shall be based on an assumed sale of 100% of the outstanding capital stock of Issuer (without reduction for minority discount or lack of liquidity of the Option Shares) and shall be determined using customary criteria generally employed within the investment banking community at the time such determination is made for valuing an entity similar to Issuer. The investment banker's or appraiser's determination shall be conclusive and binding on Shareholder, Issuer and Optionee. Issuer shall bear all costs incurred in connection with the services of such investment banker or appraiser unless the Fair Market Value established by the investment banker or appraiser is (i) less than or equal to 110% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for such costs or (ii) greater than 110% but less than 130% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for 50% of such costs.
(d) For so long as Optionee or his or her Permitted Transferee owns the Option Shares, Issuer agrees that it shall, upon the written request of Optionee, provide Optionee with annual financial statements of Issuer promptly upon the completion of the preparation of such statements. The annual financial statements shall be accompanied by an audit report by Issuer's independent accountants.
Appears in 1 contract
Purchase of Option Shares. (a) In the event that the Termination Date occurs for any reason prior to an Initial Public Offering or an Approved Sale, subject to Section 9(b) below, the Option Shares shall be subject to repurchase as follows:
(i) Issuer, during the sixty (60) days following the later of the Termination Date or the date upon which Optionee gives notice in accordance with Section 7 hereof of his election to exercise all or a part of the portion of the Option vested at the Termination Date (the "Repurchase Period"), shall have the a one-time right to purchase all, but not less than all, of the Option Shares owned by Optionee on the Termination Date or to be acquired by Optionee pursuant to such notice of exerciseShares.
(ii) If Issuer does not elect to purchase the Option Shares during the Repurchase Period, then Shareholder, during the thirty (30) days following the expiration of the Repurchase Period (the "Second Repurchase Period"), shall have a one-time right to purchase all, but not less than all, of the Option Shares.
(iii) In the event that Optionee becomes entitled to acquire does not own any Option Shares after on the Termination Date, Issuer or Shareholder (as applicable) may notify Optionee in accordance with Section 9(b) hereof that Issuer or Shareholder (as applicable) will purchase any Option Shares that Optionee may thereafter become entitled to acquire upon the exercise of the Option Options and shall set the Purchase Date (as hereinafter defined) and shall purchase such Option Shares, if any, pursuant to the terms of this Agreement.
(iiiiv) The purchase price (the "Repurchase Price") for each Option Share shall be the Fair Market Value, provided, however, that in the case of Option Shares purchased by Optionee during the 90-day period immediately preceding the Purchase Date, if no material adverse change in the business or financial condition of the Employer occurs during such 90-day period, the purchase price shall be the greater of Fair Market Value or the per share exercise price paid by Optionee upon his acquisition of the Option Share.
(iv) . If Issuer or Shareholder elects to purchase the Option Shares, it shall notify Optionee at or before the end of the Repurchase Period or, in the case of Shareholder, the Second Repurchase Period, and the Repurchase Price shall be paid in cash at a time set by Issuer or Shareholder, as the case may be, which time shall be within thirty (30) days after the end of the Repurchase Period (or Second Repurchase Period, as the "Purchase Date")case may be, provided that Optionee has presented to Issuer or Shareholder an Endorsed Certificate.
(v) The Option Shares shall be transferred to Issuer or Shareholder, as applicable, free and clear of all liens, encumbrances, mortgages, pledges, security interests, restrictions, prior assignments and claims of any kind or nature whatsoever except those created by the Restated Certificate of Incorporation or this Agreement. If Issuer or Shareholder does not purchase the Option Shares, the restrictions on transfer thereof contained in Sections 5 and 8 of this Agreement shall terminate and be of no further force and effect. Notwithstanding Optionee's failure to deliver the Endorsed Certificate, the Option Shares represented thereby shall be deemed to be owned by Issuer or Shareholder, as applicable, upon (A) the payment by Issuer or Shareholder, as applicable, of the purchase price to Optionee or his or her Permitted Transferee or (B) notice to Optionee or such Permitted Transferee that Issuer or Shareholder, as applicable, is holding the purchase price in the United States for the account of Optionee or such Permitted Transferee, and upon such payment or notice (x) Optionee and such Permitted Transferee will have no further rights in or to such Option Shares, (y) Issuer or Shareholder, as applicable, shall be entitled to specific performance of Optionee's or such Permitted Transferee's obligation to deliver such Endorsed Certificates, and (z) Optionee and his or her Permitted Transferee shall be jointly and severally liable for all reasonable attorneys' fees and other costs and expenses incurred by Issuer or Shareholder, as applicable, in enforcing its right to repurchase the Option Shares hereunder and shall pay to Issuer or Shareholder, as applicable, promptly upon demand the amount of all such fees and expenses.
(bvi) In Optionee shall not be obligated to transfer any Option Shares to Issuer or Shareholder, as applicable, unless, concurrently with the event an unvested portion repurchase of the Option becomes exercisable pursuant to Section 4(b), for purposes of Section 9(a), the Repurchase Period shall commence as of the date notice of the Option's exercisability is provided to Optionee.
(c) The Fair Market Value shall be determined in good faith by Issuer's Board of Directors. If the Board determination is challenged by Optionee, a mutually acceptable investment banker or appraiser shall establish the Fair Market Value. If Optionee and Issuer cannot agree upon an investment banker or appraiser each shall choose an investment banker or appraiser and the two investment bankers or appraisers shall choose a third investment banker or appraiser who alone shall establish the Fair Market Value. The Fair Market Value shall be based on an assumed sale of 100% of the outstanding capital stock of Issuer (without reduction for minority discount or lack of liquidity of the Option Shares) and shall be determined using customary criteria generally employed within the investment banking community at the time such determination is made for valuing an entity similar to Issuer. The investment banker's or appraiser's determination shall be conclusive and binding on Shareholder, Issuer and Optionee. Issuer shall bear all costs incurred in connection with the services of such investment banker or appraiser unless the Fair Market Value established by the investment banker or appraiser is (i) less than or equal to 110% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for such costs or (ii) greater than 110% but less than 130% of the Board of Directors' determination, in which case Optionee shall promptly pay or reimburse Issuer for 50% of such costs.
(d) For so long as Optionee or his or her Permitted Transferee owns the Option Shares, Issuer agrees that it shall, upon the written request of Optionee, provide Optionee with annual financial statements of Issuer promptly upon the completion of the preparation of such statements. The annual financial statements shall be accompanied by an audit report by Issuer's independent accountants.
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