Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions: (1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror." (2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days. (3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares. (4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8. (b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8. (c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 7 contracts
Samples: Non Qualified Stock Option Agreement (Intellisys Group Inc), Non Qualified Stock Option Agreement (Intellisys Group Inc), Non Qualified Stock Option Agreement (Intellisys Group Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period commencing on the Initial Closing Date and ending on the fifth anniversary of thirty (30) calendar days after the notice dateInitial Closing Date, the Company shall have the option to purchase all Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (but not less than alleach, a "transfer") any of the Offered Shares at (or the purchase price and on Underlying Common Shares), without the terms set forth in subsection (a)(3) prior express written consent of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term foregoing restriction on transfer shall not apply (i) if Capital Z Beneficially Owns less than (A) fifty percent (50%) of the number of shares of Senior Preferred Stock purchased by Capital Z on the Initial Closing Date (the "Original Preferred Shares") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any limitations on conversion of such shares prior to the Recapitalization), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (ii) if the Management Employee dies, retires, is terminated by the Company, or terminates his employment with the Company, subject to the provisions of Section 5 hereof; or (iii) a Change of Control (as defined in the New Option Plan) has occurred, but only if a Capital Z Realization Event (as defined in the New Option Plan) has also occurred on or prior to such Change of Control, and provided, further, that notwithstanding the foregoing restriction on transfer" does not include , the Management Investor may transfer, during the twelve-month period ending on the first anniversary of the Initial Closing Date and during each succeeding twelve-month period, up to 25% of the total number of Underlying Common Shares (whether structured as a transfer of such shares or interests by will or by the applicable laws of descent and distribution Shares, Underlying Shares or a gift of such shares if combination thereof) acquired hereunder (subject to adjustment for splits, combinations, reclassifications and similar events), it being further agreed that the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of Management Investor may request the Company's stock purchased on exercise Board of Directors to allow the Management Investor to transfer Shares (or Underlying Common Shares) in excess of the Option shall be transferred on 25% limitation described in this proviso if extraordinary liquidity needs have arisen with respect to the Company's books nor shall Management Investor, and, in such event, the Company recognize any (through its Board of Directors) will consider such transfer request in good faith and will not unreasonably withhold its consent to a waiver of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8limitation.
Appears in 5 contracts
Samples: Preferred Stock Purchase Agreement (Aames Financial Corp/De), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 11.1 The Shares acquired by the Optionee pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Optionee except as permitted herein.
(1) Before there can 11.2 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Optionee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Optionee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Optionee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferOptionee. The date Such notice shall constitute a binding offer by the Optionee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Optionee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Optionee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Optionee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Optionee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company's principal office. At such closing, the Optionee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Optionee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Optionee's notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Optionee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
11 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 11.2 shall again apply with respect to any proposed voluntary transfer of the Optionee's Shares.
(iv) The restrictions on transfer contained in this Section 11.2 shall not apply to (a) transfers by the Optionee to his or her spouse, children, guardian or conservator, (b) transfers by the Optionee to the trustee or trustees of a trust for the benefit of himself or herself or of a spouse or child, and (c) transfers by the Optionee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 11.2 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
11.3 In the event that the Optionee or his or her successor in interest fails to deliver the Shares to be purchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Optionee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Optionee to the Company and to treat the Optionee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Optionee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
11.4 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its common stock, or otherwise distribute securities of the Company to the holders of its common stock, the number of Shares of stock evidencing or other securities of Company issued with respect to the Shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to purchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock purchased on exercise of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
11.5 If the outstanding shares of common stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of common stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
11.6 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
11.7 The provisions of Sections 10.1 and 10.2 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
11.8 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Optionee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
11.9 The Optionee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Optionee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Optionee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
11.10 All certificates representing the Shares to be issued to the Optionee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Option Agreement dated March 5, 1997 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 4 contracts
Samples: Stock Option Agreement (Command Systems Inc), Stock Option Agreement (Command Systems Inc), Stock Option Agreement (Command Systems Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 11.1 The Shares acquired by the Optionee pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Optionee except as permitted herein.
(1) Before there can 11.2 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Optionee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Optionee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Optionee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferOptionee. The date Such notice shall constitute a binding offer by the Optionee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Optionee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Optionee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Optionee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Optionee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company's principal office. At such closing, the Optionee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Optionee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Optionee's notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Optionee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
11 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 11.2 shall again apply with respect to any proposed voluntary transfer of the Optionee's Shares.
(iv) The restrictions on transfer contained in this Section 11.2 shall not apply to (a) transfers by the Optionee to his or her spouse, children, guardian or conservator, (b) transfers by the Optionee to the trustee or trustees of a trust for the benefit of himself or herself or of a spouse or child, and (c) transfers by the Optionee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 11.2 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
11.3 In the event that the Optionee or his or her successor in interest fails to deliver the Shares to be purchased by the Company under this Agreement, the Company may elect
(a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Optionee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Optionee to the Company and to treat the Optionee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Optionee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
11.4 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its common stock, or otherwise distribute securities of the Company to the holders of its common stock, the number of Shares of stock evidencing or other securities of Company issued with respect to the Shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to purchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock purchased on exercise of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
11.5 If the outstanding shares of common stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of common stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
11.6 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
11.7 The provisions of Sections 10.1 and 10.2 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
11.8 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Optionee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
11.9 The Optionee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Optionee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Optionee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
11.10 All certificates representing the Shares to be issued to the Optionee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Option Agreement dated March 5, 1997 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 4 contracts
Samples: Stock Option Agreement (Command Systems Inc), Stock Option Agreement (Command Systems Inc), Stock Option Agreement (Command Systems Inc)
Restrictions on Transfer of Shares. For a period commencing on the Closing Date and ending on the fifth anniversary of the Closing Date, the Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (aeach, a "TRANSFER") There can be no valid any of the Shares (or the Underlying Common Shares), without the prior express written consent of the Company, PROVIDED, HOWEVER, that the foregoing restriction on transfer shall not apply (i) if Capital Z Financial Services Fund II. L.P. ("CAPITAL Z") Beneficially Owns (as hereinafter defineddefined in the Purchase Agreement referred to below) less than (A) fifty percent (50%) of any the number of shares of stock Senior Preferred Stock (as defined in the Purchase Agreement referred to below) purchased by Capital Z on exercise the Initial Closing Date (as defined in the Purchase Agreement referred to below) (the "ORIGINAL PREFERRED SHARES") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the Option, or sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any interest in such shares, remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any holder limitations on conversion of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee Recapitalization (as set forth defined in the notice required under subsection Purchase Agreement referred to below)), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (a)(1ii) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for if the Offered Shares andManagement Investor dies, upon such payment retires, is terminated by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying terminates his employment with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees subject to be bound by the provisions of this Section 5.8.
4 hereof; or (ciii) None a Change of Control (as defined in the shares New Option Plan (as such term is defined in the Purchase Agreement referred to below)) has occurred, but only if a Capital Z Realization Event (as defined in the New Option Plan) has also occurred on or prior to such Change of Control, and PROVIDED, FURTHER, that notwithstanding the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.foregoing
Appears in 3 contracts
Samples: Management Investment Agreement (Aames Financial Corp/De), Management Investment Agreement (Aames Financial Corp/De), Management Investment Agreement (Aames Financial Corp/De)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service by the Company or an Affiliate for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, consultancy or directorship, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the death or Disability or termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, and for his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service provided, however, in the event of a termination by the Company for “cause,” (as defined in the Plan) the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of six (6) months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the Company within sixty (60) days after its receipt of written notice from the Participant. The Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the Closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice; provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months if required under applicable laws accounting rules in effect at the time. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of descent Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or her notice to the designated transferee at the price and distribution or a gift terms designated in the Participant’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with in all respects. The certificates of stock evidencing shares of stock purchased on exercise respect to any proposed voluntary transfer of the Option Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall bear an appropriate legend referring not apply to transfers by the Participant (a) to the transfer restrictions imposed trustee or trustees of a trust revocable solely by him or her, (b) to one or more members of his or her Immediate Family, (c) to a trust for the benefit of himself or herself and/or one or more members of his or her Immediate Family, (d) to a partnership all of the partners of which are him or her and/or a Permitted Transferee of the type described in clauses (a) through (e) of this clause (iv), (e) to a limited liability company or similar entity all of the members of which are him or her and/or a Permitted Transferee of the type described in clauses (a) through (e) of this clause (iv), (f) as a bona fide gift or donation to a charitable organization, (g) to his or her guardian or conservator, or (h) in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement (including the Company’s rights under Section 5.8 12.1), and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the repurchase option provided for in Section 5.8effectiveness of such transfer.” As used herein, the term “Immediate Family Member” shall mean the Participant’s spouse or equivalent, former spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers, nieces, nephews and grandchildren.
Appears in 2 contracts
Samples: Non Qualified Stock Option Agreement, Non Qualified Stock Option Agreement (Paratek Pharmaceuticals Inc)
Restrictions on Transfer of Shares. For a period commencing on the Initial Closing Date and ending on the fifth anniversary of the Initial Closing Date, the Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (aeach, a "TRANSFER") There can be no valid any of the Shares (or the Underlying Common Shares), without the prior express written consent of the Company, PROVIDED, HOWEVER, that the foregoing restriction on transfer shall not apply (as hereinafter definedi) if Capital Z Beneficially Owns less than (A) fifty percent (50%) of any the number of shares of stock Senior Preferred Stock purchased by Capital Z on exercise the Initial Closing Date (the "ORIGINAL PREFERRED SHARES") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the Option, or sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any interest in such shares, remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any holder limitations on conversion of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty Recapitalization), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (30ii) days.
(3) The price at which if the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares andManagement Employee dies, upon such payment retires, is terminated by the Company, or terminates his employment with the Company shall acquire full rightCompany, title subject to the provisions of Section 5 hereof; or (iii) a Change of Control (as defined in the New Option Plan) has occurred, but only if a Capital Z Realization Event (as defined in the New Option Plan) has also occurred on or prior to such Change of Control, and interest to all PROVIDED, FURTHER, that notwithstanding the foregoing restriction on transfer, the Management Investor may transfer, during the twelve-month period ending on the first anniversary of the Offered Shares.
(4) If, Initial Closing Date and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirtyduring each succeeding twelve-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise month period, and if such transfer has not taken place prior up to said ninetieth 25% of the total number of Underlying Common Shares (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or whether structured as a transfer of shares of Shares, Underlying Shares or a combination thereof) acquired hereunder (subject to adjustment for splits, combinations, reclassifications and similar events), it being further agreed that the Management Investor may request the Company's stock Board of Directors to allow the Management Investor to transfer Shares (or any legal or equitable interest therein; providedUnderlying Common Shares) in excess of the 25% limitation described in this proviso if extraordinary liquidity needs have arisen with respect to the Management Investor, howeverand, that in such event, the term "transfer" does Company (through its Board of Directors) will consider such request in good faith and will not include unreasonably withhold its consent to a transfer waiver of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8limitation.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 2 contracts
Samples: Management Investment Agreement (Thompson Cary), Management Investment Agreement (Kornswiet Neil)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to $.01.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of 18 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of the Option shall bear an appropriate legend referring Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated September 17, 2003 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 2 contracts
Samples: Incentive Stock Option Agreement (AMEDICA Corp), Incentive Stock Option Agreement (AMEDICA Corp)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to $.01.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of 18 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of the Option shall bear an appropriate legend referring Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated September 17, 2003 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 2 contracts
Samples: Non Qualified Stock Option Agreement (AMEDICA Corp), Non Qualified Stock Option Agreement (AMEDICA Corp)
Restrictions on Transfer of Shares. (a) There can be no valid transfer Corporation's Right of First Refusal. Prior to closing of a firm ------------------------------------ commitment underwriting of the Corporation's Common Stock pursuant to a registration statement under the Securities Act of 1933 with gross proceeds to the Corporation of at least $10,000,000.00, the Stockholder shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of (as hereinafter definedcollectively "transfer") of any shares of stock purchased on exercise of Common Stock acquired by him, including, without limitation, the OptionShares, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the whether such shares to be transferred (the "Offered Shares") shall give are now held or hereafter acquired, without first giving written notice (by registered or certified mail) thereof to the Company. Such notice shall specify the identity of Corporation identifying the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee transfer price, and the other terms and conditions of the proposed transfer. The date transaction (which must be bona fide), and offering such notice is mailed shall be hereinafter referred shares to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to Corporation for purchase all (but not less than all) of the Offered Shares by it at the purchase same price and on the terms set forth in subsection (a)(3) of this Section 5.8same terms. This option Such offer shall be exercisable in writing and mailed, postage prepaid, or delivered to the Corporation at its principal office. The Corporation shall have 20 days after actual receipt of such offer to notify the Stockholder in writing of its intention to purchase all or any part of such shares. If the Corporation elects to repurchase all or any part of such shares, the Stockholder shall sell to the Corporation the shares to be repurchased, free of all encumbrances, and shall deliver the certificates representing such shares, duly endorsed in blank by the Company by mailing (by registered Stockholder or certified mail) written notice with duly executed stock powers attached thereto, all in form suitable for the transfer of exercise such shares to the Offeror prior Corporation, within 20 days of the date of acceptance of the offer to sell, against payment therefor at the same price and according to the same terms as were offered by the proposed transferee. If an offer has not been accepted by the Corporation as to any or all offered shares within the time specified in this subparagraph, then the Stockholder shall have 20 days within which he may transfer the shares as to which the offer shall not have been accepted, free of the restrictions imposed by this subparagraph, to the proposed transferee at the same price and according to the same terms as the Stockholder previously notified the Corporation, and thereafter such restrictions shall not apply to any shares so transferred. At the end of said thirty (30) days.
(3) The price at which such 20-day period, the Company may purchase restrictions imposed by this subparagraph shall resume and be in full force and effect as to all shares not so transferred within the Offered Shares pursuant period. Notwithstanding any provisions to the exercise contrary herein contained, the Stockholder may during his lifetime, and the legal representatives of such option shall be the cash price offered Stockholder may after his death, transfer any shares of Common Stock held by him absolutely to, or in trust solely for the Offered Shares by the proposed transferee benefit of, any member of his immediate family (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option which shall be accompanied by full payment for the Offered Shares andpurposes hereof, upon mean his spouse and any lineal descendant of his), without being required to offer such payment by shares to the CompanyCorporation as provided herein, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in shares as are so transferred shall remain subject to any and all respects, be exactly restrictions and obligations hereunder as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior shares continued to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or be held by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8original transferor thereof.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration the Participant except as permitted by the ROFR Agreement and is made in compliance with the following provisions:Stockholders’ Agreement.
(1) Before there can be a valid transfer of any shares or any interest therein, 12.2 In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity Participant’s termination of the proposed transferee, the cash price offered service for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateany reason, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered Shares at issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the purchase price and on event the terms set forth in subsection Company does not, upon the termination of service of the Participant (a)(3) of as described above), exercise its option pursuant to this Section 5.8. This option shall be exercisable by 12.2, the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as restrictions set forth in the notice required under subsection (a)(1) balance of this Section 5.8)Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The Company's notice following provisions shall apply to a repurchase under this Section 12.2:
(a) The per share repurchase price of the Shares to be sold to the Company upon exercise of such its option under this Section 12.2 shall be accompanied by full payment for equal to the Offered Shares and, upon Fair Market Value of each such payment by Share determined in accordance with the Company, the Company shall acquire full right, title and interest to all Plan as of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) date of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) termination of this Section 5.8 may take placeservice; provided, however, that such transfer mustin the event of a termination by the Company for “cause” (as defined in the Plan), in all respects, the per share repurchase price of the Shares to be exactly as proposed in said notice except that such transfer may not take place either before sold to the tenth (10th) calendar day after the expiration Company upon exercise of said thirty-day its option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of under this Section 5.812.2 shall be equal to the Purchase Price.
(b) As used The Company’s option to repurchase the Participant’s Shares in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form event of disposition or transfer termination of shares service shall be valid for a period of 18 months commencing with the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer date of such shares or interests by will or by the applicable laws termination of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8service.
(c) None In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option time period provided for in Section 5.812.2(b) for exercise of the Company’s option to repurchase.
(d) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a condition precedent to the validity of any sale or other transfer of any Shares by the Participant that (except as hereinafter otherwise provided) no Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any person or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions set forth in the ROFR Agreement.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.9 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated , 2011 with this Company, a Third Amended and Restated Stockholders’ Agreement dated March 16, 2010 with this Company and an Amended and Restated Right of First Refusal and Co-Sale Agreement dated March 16, 2010 with this Company, copies of which agreements are available for inspection at the offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Stemline Therapeutics Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment or for any reason, the Company shall have the option, but not the obligation, to repurchase all or any part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The following provisions shall apply to a repurchase under this Section 12.2;
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment, death or Disability shall be valid for a period of six (6) months commencing with the date of such termination, death or Disability.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or any interest in such sharescase of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by any holder the Company up to and including the last day of such shares or interests unless such transfer is solely the time period provided for cash consideration and is made in compliance with Section 12.2(ii) for exercise of the following provisions:Company’s option to repurchase.
(1iv) Before there can The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the Company within sixty (60) days after its receipt of written notice from the Employee. The Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the Closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months if required under applicable laws accounting rules in effect at the time. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of descent Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or her notice to the designated transferee at the price and distribution or a gift terms designated in the Employee’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with in all respects. The certificates of stock evidencing shares of stock purchased on exercise respect to any proposed voluntary transfer of the Option Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall bear an appropriate legend referring not apply to transfers by the Employee (a) to the transfer restrictions imposed trustee or trustees of a trust revocable solely by him or her, (b) to one or more members of his or her Immediate Family, (c) to a trust for the benefit of himself or herself and/or one or more members of his or her Immediate Family, (d) to a partnership all of the partners of which are him or her and/or a Permitted Transferee of the type described in clauses (a) through (e) of this clause (iv), (e) to a limited liability company or similar entity all of the members of which are him or her and/or a Permitted Transferee of the type described in clauses (a) through (e) of this clause (iv), (f) as a bona fide gift or donation to a charitable organization, (g) to his or her guardian or conservator, or (h) in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement (including the Company’s rights under Section 5.8 12.1), and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the repurchase option provided for in Section 5.8effectiveness of such transfer.” As used herein, the term “Immediate Family Member” shall mean the Employee’s spouse, former spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers, nieces, nephews and grandchildren.
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Paratek Pharmaceuticals Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to $.01.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of 18 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act, in which offering the aggregate gross proceeds to the Company exceed $10,000,000 and in which the price per share of such securities equals or exceeds $5.00 (such price subject to equitable adjustment in the event of any stock split, stock dividend, combination, reorganization, reclassification or other similar event).
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated April 19, 2007 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Scientific Advisory Board Agreement (Invivo Therapeutics Holdings Corp.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1i) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2ii) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.85.10. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3iii) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the lower of the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1a)(i) of this Section 5.8)5. 10) or the fair market value. The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4iv) If, and only if, the option given pursuant to subsection (a)(2a)(ii) of this Section 5.8 5.10 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1a)(i) of this Section 5.8 5.10 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.85.10.
(b) As used in this Section 5.85. 10, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the transferee or donee agrees to be bound by the provisions of this Section 5.85. 10.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 5.10 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 5.10 and to the repurchase option provided for in Section 5.85.9.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Comps Com Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of service, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of repurchase provided, however, in the event of a termination by the Company for Cause, the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the lesser of the Exercise Price and the Fair Market Value on the date of the repurchase.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of 12 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as otherwise provided in this Section 12):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the Company within 60 days after its receipt of written notice from the Participant. The Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the Closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months if required under applicable laws accounting rules in effect at the time. The place for such Closing shall be at the Company’s principal office. At such Closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of descent Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or her notice to the designated transferee at the price and distribution or a gift terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of the Option shall bear an appropriate legend referring Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 The Participant agrees that in the event the Company proposes to offer for sale to the public any of its equity securities and such Participant is requested by the Company and any underwriter engaged by the Company in connection with such offering to sign an agreement restricting the sale or other transfer of Shares, then it will promptly sign such agreement and will not transfer, whether in privately negotiated transactions or to the public in open market transactions or otherwise, any Shares or other securities of the Company held by him or her during such period as is determined by the Company and the underwriters, not to exceed 180 days following the closing of the offering, plus such additional period of time as may be required to comply with NASD Rule 2711 or similar rules thereto (such period, the “Lock-Up Period”). Such agreement shall be in writing and in form and substance reasonably satisfactory to the Company and such underwriter and pursuant to customary and prevailing terms and conditions. Notwithstanding whether the Participant has signed such an agreement, the Company may impose stop-transfer instructions with respect to the Shares or other securities of the Company subject to the foregoing restrictions imposed until the end of the Lock-Up Period.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the service of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Stock Option Agreement dated ____________, 201__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant's termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service.
(ii) The Company's option to repurchase the Participant's Shares in the event of termination of service shall be valid for a period of eighteen (18) months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant's Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company's principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant's notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse, siblings, children, children-in-law and grandchildren or to a trust for the benefit of any such person, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing to the Company as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated ______________ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration the Participant except as permitted by the ROFR Agreement and is made in compliance with the following provisions:Stockholders’ Agreement.
(1) Before there can be a valid transfer of any shares or any interest therein, 12.2 In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity Participant’s termination of the proposed transferee, the cash price offered employment for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateany reason, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered Shares at issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the purchase price and on event the terms set forth in subsection Company does not, upon the termination of employment of the Participant (a)(3) of as described above), exercise its option pursuant to this Section 5.8. This option shall be exercisable by 12.2, the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as restrictions set forth in the notice required under subsection (a)(1) balance of this Section 5.8)Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The Company's notice following provisions shall apply to a repurchase under this Section 12.2:
(a) The per share repurchase price of the Shares to be sold to the Company upon exercise of such its option under this Section 12.2 shall be accompanied by full payment for equal to the Offered Shares and, upon Fair Market Value of each such payment by Share determined in accordance with the Company, the Company shall acquire full right, title and interest to all Plan as of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) date of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) termination of this Section 5.8 may take placeemployment; provided, however, that such transfer mustin the event of a termination by the Company for Cause, in all respects, the per share repurchase price of the Shares to be exactly as proposed in said notice except that such transfer may not take place either before sold to the tenth (10th) calendar day after the expiration Company upon exercise of said thirty-day its option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of under this Section 5.812.2 shall be equal to the Purchase Price.
(b) As used The Company’s option to repurchase the Participant’s Shares in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form event of disposition or transfer termination of shares employment shall be valid for a period of 18 months commencing with the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer date of such shares or interests by will or by the applicable laws termination of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8employment.
(c) None In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option time period provided for in Section 5.812.2(b) for exercise of the Company’s option to repurchase.
(d) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a condition precedent to the validity of any sale or other transfer of any Shares by the Participant that (except as hereinafter otherwise provided) no Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any person or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions set forth in the ROFR Agreement.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.9 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated November [ ], 2011 with this Company, a Third Amended and Restated Stockholders’ Agreement dated March 16, 2010 with this Company and an Amended and Restated Right of First Refusal and Co-Sale Agreement dated March 16, 2010 with this Company, copies of which agreements are available for inspection at the offices of the Company or will be made available upon request.”
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can All options and shares issued pursuant to the Plan shall be no valid transfer (as hereinafter defined) subject to the following restrictions:
a. Neither the optionee nor the optionee's heirs, executors, or administrators shall sell, exchange, give, transfer, pledge, hypothecate, or otherwise dispose of any options or shares of stock purchased on exercise of in the Option, Corporation or any interest in such sharesthe options or shares except as provided in the Plan.
b. Upon termination of employment or death of optionee, the unvested shares acquired by any holder optionee pursuant to this Plan shall be subject to a right of repurchase by the Corporation on the terms and conditions as set forth for the right of first refusal below."
c. Any purported sale or transfer of shares by the optionee shall be subject to a right by the Corporation to a right of first refusal to repurchase such shares or interests unless such transfer is solely for cash consideration and is made in compliance with at the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder greater of the price paid for such shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and Optionee, book value, as determined by subparagraph d, below, or upon substantially the other same terms and conditions of the proposed transferpurchase by the purchaser. In the event optionee wishes to transfer some or all of optionee's fully-vested option shares, optionee must first disclose in writing all material terms of such transfer to the Corporation. The date Corporation will then have the right to purchase from optionee, within the thirty (30)-day period following receipt of such written notice is mailed shall (or such longer period as may be hereinafter referred agreed to as by the "notice date" Company and the record holder optionee), all (or any part of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than allshares with optionee's consent) of the Offered Shares at shares acquired upon exercise of option on substantially the purchase price same terms and on conditions as stated in the terms set forth in subsection (a)(3) written notice. The right of this Section 5.8. This option first refusal shall be exercisable by terminate upon the date of the first registration of an equity security of the Company by mailing (by registered or certified mail) written notice under Section 12 of exercise to the Offeror prior to the end of said thirty (30) daysExchange Act.
(3) The price at which d. For the Company may purchase purposes of the Offered Shares pursuant to the exercise right of such option shall repurchase and right of first refusal, book value will be the cash price offered for the Offered Shares by the proposed transferee (calculated as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all Paragraph 10.d of the Offered Shares1995 Stock Option Plan.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or e. The restrictions on transfer of shares set forth herein shall not be applicable in the event of merger or acquisition of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include Corporation by terms of which a transfer of such general offer to purchase shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees is extended to be bound by the provisions of this Section 5.8.
(c) None all shareholders of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8Corporation.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of employment, consultancy or directorship by the Company, any parent or subsidiary of the Company, direct or indirect, or any interest subsidiary of the parent of the Company, Disability or death, the Company shall have the option, but not the obligation, to repurchase all or any part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, consultancy or directorship, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the death or Disability of the Participant or termination of his or her employment, directorship, or consultancy (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, and his or hers heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can Except in the event of termination for “cause” as defined in the Plan, the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination, death or Disability. In the event of termination for “cause,” the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the price paid for the Shares pursuant to Section 2 hereof.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of employment, consultancy or directorship, death or Disability shall be valid for a period of six (6) months commencing with the date of such termination, death or Disability.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the Closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that he or she (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by a participant to the trustee or trustees of a trust revocable solely by him or her, (b) transfers by a Participant to his or her guardian or conservator, (c) or transfers by a Particpant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided, however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its common capital stock, or otherwise distribute securities of the Company to the holders of its common capital stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Section 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934, as amended.
12.9 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the offices of the Company or will be made available upon request.”
12.10 If in connection with a registration statement filed by the Company pursuant to the repurchase option provided 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any of its Shares for in Section 5.8a period not to exceed the lesser of: (i) 180 days following the effectiveness of such registration statement or (ii) such period as the officers and directors of the Company agree not to sell their Shares.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Paratek Pharmaceuticals Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of eighteen (18) months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the transfer restrictions imposed by contained in this Section 5.8 Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase option provided pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the Securities Act, in which offering the aggregate gross proceeds to the Company exceed $15,000,000 and in which the price per share of such securities equals or exceeds $5.00 (such price subject to equitable adjustment in the event of any stock split, stock dividend, combination, reorganization, reclassification or other similar event).
12.9 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for in Section 5.8a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Curagen Corp)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant's termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service, provided, however, in the event of a termination by the Company for "cause" (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company's option to repurchase the Participant's Shares in the event of termination of service shall be valid for a period of 18 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant's Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months. The place for such closing shall be at the Company's principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated ________, 200__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Metabolix, Inc.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant's termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service.
(ii) The Company's option to repurchase the Participant's Shares in the event of termination of service shall be valid for a period of 18 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant's Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months. The place for such closing shall be at the Company's principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.812 so that such transferee (and all subsequent transferees) shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the provisions of this Section 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) None or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company's stock purchased on exercise securities pursuant to a registration statement filed with the Securities and Exchange Commission.
12.9 The Employee agrees that in the event that the Company effects an initial public offering of the Option shall Common Stock of the Company registered under the Securities Act, the Shares may not be transferred on sold, offered for sale or otherwise disposed of, directly or indirectly, without the prior written consent of the managing underwriter(s) of the offering, for such period of time after the execution of an underwriting agreement in connection with the such offering that all of the Company's books then directors and executive officers agree to be similarly bound.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor shall its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise affecting the value of the Option shall bear an appropriate legend referring Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the transfer restrictions imposed Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated ________, 200__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Archemix Corp.)
Restrictions on Transfer of Shares. For a period commencing on the Closing Date and ending on the fifth anniversary of the Closing Date, the Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (aeach, a "TRANSFER") There can be no valid any of the Shares (or the Underlying Common Shares), without the prior express written consent of the Company, PROVIDED, HOWEVER, that the foregoing restriction on transfer shall not apply (i) if Capital Z Financial Services Fund II. L.P. ("CAPITAL Z") Beneficially Owns (as hereinafter defineddefined in the Purchase Agreement referred to below) less than (A) fifty percent (50%) of any the number of shares of stock Senior Preferred Stock (as defined in the Purchase Agreement referred to below) purchased by Capital Z on exercise the Initial Closing Date (as defined in the Purchase Agreement referred to below) (the "ORIGINAL PREFERRED SHARES") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the Option, or sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any interest in such shares, remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any holder limitations on conversion of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee Recapitalization (as set forth defined in the notice required under subsection Purchase Agreement referred to below)), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (a)(1ii) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for if the Offered Shares andManagement Investor dies, upon such payment retires, is terminated by the Company, or terminates his employment with the Company shall acquire full rightCompany, title subject to the provisions of Section 4 hereof; or (iii) a Change of Control (as defined in the New Option Plan (as such term is defined in the Purchase Agreement referred to below)) has occurred, but only if a Capital Z Realization Event (as defined in the New Option Plan) has also occurred on or prior to such Change of Control, and interest to all PROVIDED, FURTHER, that notwithstanding the foregoing restriction on transfer, the Management Investor may transfer, during the twelve-month period ending on the first anniversary of the Offered Shares.
(4) If, Closing Date and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirtyduring each succeeding twelve-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise month period, and if such transfer has not taken place prior up to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares 25% of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include total number of Underlying Common Shares (whether structured as a transfer of such shares or interests by will or by the applicable laws of descent and distribution Shares, Underlying Shares or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(ccombination thereof) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.acquired hereunder
Appears in 1 contract
Samples: Management Investment Agreement (Aames Financial Corp/De)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of 12 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the Company within 60 days after its receipt of written notice from the Employee. The Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the Closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months if required under applicable laws accounting rules in effect at the time. The place for such Closing shall be at the Company’s principal office. At such Closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of descent Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or her notice to the designated transferee at the price and distribution or a gift terms designated in the Employee’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Non-Voting Common Stock, or otherwise distribute securities of the Company to the holders of its Non-Voting Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Non-Voting Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Non-Voting Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 The Employee agrees that in the event the Company proposes to offer for sale to the public any of its equity securities and such Employee is requested by the Company and any underwriter engaged by the Company in connection with such offering to sign an agreement restricting the sale or other transfer of Shares, then it will promptly sign such agreement and will not transfer, whether in privately negotiated transactions or to the public in open market transactions or otherwise, any Shares or other securities of the Company held by him or her during such period as is determined by the Company and the underwriters, not to exceed 180 days following the closing of the offering, plus such additional period of time as may be required to comply with Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules thereto (such period, the “Lock-Up Period”). Such agreement shall be in writing and in form and substance reasonably satisfactory to the Company and such underwriter and pursuant to customary and prevailing terms and conditions. Notwithstanding whether the Employee has signed such an agreement, the Company may impose stop-transfer instructions with respect to the Shares or other securities of the Company subject to the foregoing restrictions imposed until the end of the Lock-Up Period.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Latrobe Specialty Metals, Inc.)
Restrictions on Transfer of Shares. With respect to the registration status and transferability of the Shares, the undersigned understands, acknowledges and agrees that:
(a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise Neither the offer nor the sale of the Option, Shares to be issued in connection with this subscription and the offering have been registered under the Securities Act or any interest under applicable state securities laws on the grounds that they are being issued in such shares, by any holder a transaction (i) involving a limited group of such shares or interests unless such transfer is solely for cash consideration and is made in compliance knowledgeable investors fully familiar with the following provisions:
(1) Before there can be a valid transfer proposed operations of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full rightand (ii) not involving a public offering and that, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) dayconsequently, such transfer may not take place without once again complying with subsection (a) of this Section 5.8transaction is exempt from registration under the Securities Act and applicable state securities laws. The Company will rely on the undersigned’s representations herein as a basis for exemptions from the Securities Act’s registration requirements.
(b) As used a result of the offer and sale of the Shares in this Section 5.8a transaction exempt from the registration requirements of the Securities Act, the term "transfer" means any saleShares may not be sold, encumbrancetransferred or otherwise disposed of except pursuant to an effective registration statement or appropriate exemption from registration under applicable federal and state law and, pledgeas a result, gift or other form the undersigned may be required to hold the Shares for an indefinite period of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8time.
(c) None In light of the shares of foregoing, all certificates representing the Company's stock purchased on exercise of Shares, if any, will bear legends substantially in the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respectsfollowing form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAW OF ANY STATE. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND WITHOUT A VIEW TO THEIR DISTRIBUTION AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF ANY EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE SECURITIES LAWS, UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER APPLICABLE SECURITIES LAWS.
Appears in 1 contract
Samples: Subscription Agreement (Precision Therapeutics Inc.)
Restrictions on Transfer of Shares. 8.1 For two years from the date hereof (a) There can “Restricted Period”), no Shareholder may assign, transfer or otherwise dispose of in whole or in part the legal or beneficial interest in Shares to any person without other Shareholders’ prior written approval.
8.2 In the event that the Company acquires the legal and beneficial interest in 100% of the issued shares of Cukurova Telecom Holdings Limited, then Alfa shall have an obligation, and be freely permitted without restrictions (including without being subject to the rights of pre-emption described in this clause 8, the drag-along rights described in clause 9 and the tag-along rights described in clause 10), to sell as soon as reasonably practicable, but no valid transfer later than 60 calendar days following such acquisition, at least 51% (as hereinafter definedfifty one percent) of its shares in the Company to any shares person which is not affiliated with Alfa and shall do so in any case where, as a result of stock purchased on exercise such acquisition or otherwise, the interest that Alfa owns, directly or indirectly, in Turkcell is likely to or does exceed 5.0%.
8.3 If, following the expiration of the OptionRestricted Period, any Shareholder (“Transferring Shareholder”) receives an offer from a bona fide third party potential purchaser (a “Third Party Purchaser”) regarding the transfer of some or any interest all of its shares in such shares, by any holder the Company (the “ROFR Shares”) and clauses 9 and 10 do not apply in the circumstances of such shares or interests unless such transfer is solely for cash consideration and is made offer, then, before the Transferring Shareholder enters into a binding transaction with a Third Party Purchaser in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder respect of the shares to be transferred (the "Offered ROFR Shares") , it shall first give written notice (by registered or certified maila “ROFR Notice”) to the other Shareholders and to the Company. Such notice shall specify the identity , together with details of the proposed transfereeThird Party Purchaser, the purchase price (which shall be non-deferred, non-contingent cash price offered for consideration payable upon completion of the Offered Shares by transfer) and other material terms which the proposed transferee Transferring Shareholder and the other terms and conditions Third Party Purchaser have agreed.
8.4 Within 40 Business Days of receiving the ROFR Notice, each of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company other Shareholders shall have the option right to notify the Transferring Shareholder that it wishes to purchase some or all (but not less than all) of the Offered ROFR Shares at the same purchase price and on the same material terms set forth as agreed between the Transferring Shareholder and the Third Party Purchaser (the “Acceptance Period”). Each non-transferring Shareholder shall have the right to acquire such proportion of the ROFR Shares as is relative to its shareholding in subsection (a)(3the Company as compared to the size of the shareholding(s) of each other Shareholder. Any and all notifications made under this Section 5.8. This option clause shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) daysmade in writing.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid Members of the Travelers Affiliated Group shall have the absolute right to transfer shares of Common Stock, subject to the provisions of Section 3(h) hereof.
(as hereinafter definedb) Each of the Minority Stockholders hereby agree that for a period of eighteen (18) months from the date hereof (subject to early termination pursuant to Section 3(h)(ii), the "Restricted Period"), it will not, directly or indirectly, offer, sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of any shares of stock purchased on exercise or all of the Option, Shares or any interest therein except (i) to a Permitted Transferee or (ii) as otherwise may be explicitly provided for in this Agreement. If at any time a Minority Stockholder must dispose of any or all of the Shares to comply with applicable laws or to satisfy governmental regulatory requirements (including, without limitation, bank and insurance regulatory requirements) or any order or decree of any governmental authority applicable to such sharesMinority Stockholder (including, without limitation, banking or insurance authorities), such Minority Stockholder shall first offer such shares for sale to TAP, and, if TAP determines riot to purchase such shares of Common Stock, to TIGI (or another member or members of the Travelers Affiliated Group), by written notice which shall set forth the number of shares of Common Stock to be sold by such Minority Stockholder, the price at which they are offered, and any holder other terms and conditions of the offer. If TAP or TIGI (or such other member or members of the Travelers Affiliated Group), as the case may be, fails to accept such offer or rejects such offer within 30 days after receipt of such notice, then notwithstanding the restrictions of this Section 3(b), such Minority Stockholder may, subject to the provisions of the Securities Act of 1933, as amended (the "Securities Act"), sell such shares of Common Stock to a third party purchaser (a "Third Party Purchaser") on terms that are no less favorable to such Minority Stockholder than the terms offered to TAP or interests TIGI (or such other member or members of the Travelers Affiliated Group), as the case may be; provided, however, that the foregoing terms, conditions and waiting periods are subject to the terms of any judicial, regulatory or administrative judgment or decree pursuant to which such Minority Stockholder is disposing of any or all of the Shares; provided further, that if such Third Party Purchaser shall be (i) a company that is primarily engaged in the property and casualty insurance business in the United States, or (ii) a company a "significant subsidiary" of which (as such term is defined in Rule 1-02 of Regulation S-X under the Securities Act) is pri xxxxxx engaged in the property and casualty insurance business in the United States, or (iii) a person who "controls" such a company within the meaning of Rule 1-02 of Regulation S-X under the Securities Act (each, a "Competitor"), then such Minority Stockholder shall notify TAP and TIGI (or such other member or members of the Travelers Affiliated Group) of its intention to sell such shares of Common Stock to a Competitor, and TAP and TIGI (or such other member or members of the Travelers Affiliated Group), as the case may be, shall have an additional 15 days during which any of them may agree to purchase such shares of Common Stock from such Minority Stockholder at the price per share offered to such Minority Stockholder by the Competitor. No transfer of any or all of the Shares may be made by a Minority Stockholder to any Permitted Transferee unless (i) such transfer is solely for cash consideration and is made in conformity with all applicable requirements of federal and state securities laws and (ii) such Permitted Transferee shall have agreed in writing that it, as a stockholder, and the shares of Common Stock it acquires, shall be bound by and be entitled to the benefits of all the provisions of this Agreement applicable to the shares of Common Stock acquired by such Permitted Transferee. Any purported transfer of any or all of the Shares without compliance with the following provisions:applicable provisions of this Agreement shall be void and of no effect, and the purported transferee shall have no rights hereunder. In the event of such noncomplying transfer, TAP shall not transfer any such shares of Common Stock on its books or recognize the purported transferee as a stockholder for any purpose until all applicable provisions of this Agreement have been complied with.
(1c) Before there can be a valid Each certificate for Shares and each certificate issued in exchange for or upon transfer of any Shares shall bear a legend in substantially the following form until such shares of Common Stock are sold through a public offering or are, based on an opinion of counsel satisfactory to TAP, otherwise freely tradeable under the Securities Act: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be sold or otherwise transferred absent such registration or an opinion of counsel satisfactory to Travelers/Aetna Property Casualty Corp. ("TAP") that such registration is not required. The transfer of the securities represented by this certificate is subject to the conditions specified in the Shareholders Agreement, dated as of April 2, 1996, among the stockholders listed therein, a copy of which has been placed on file by TAP at its principal place of business and its registered office. TAP reserves the right to refuse the transfer of such securities until such conditions have been fulfilled with respect to such transfer." TAP agrees that the counsel referred to in this Section 3(c) may be an employee of a Minority Stockholder.
(d) Each Minority Stockholder agrees that in the event of a public offering of shares of Common Stock or any interest thereinsecurities convertible into or exchangeable for shares of Common Stock, including, but not limited to, an initial public offering of shares of Common Stock, it shall, if and to the extent requested of such Minority Stockholders and any member of the Travelers Affiliated Group owning shares of Common Stock by the managing underwriter of any such offering, agree not to offer, sell, contract to sell, or grant any options or warrants to purchase or otherwise dispose of any or all of the Shares or any securities into or for which the Shares are convertible or exchangeable (other than pursuant to such public offering), for such period (not to exceed 180 days from the date of the final prospectus filed by TAP with the Securities and Exchange Commission (the "Commission")) as may be requested by the managing underwriter, except with the prior written consent of the managing underwriter of such public offering; provided that substantially the same restrictions are applicable to each member of the Travelers Affiliated Group who then owns shares of Common Stock.
(e) From and after the expiration or early termination of the Restricted Period, the record holder restrictions imposed by the foregoing provisions of this Section 3 (other than the second paragraph of Section 3(b)) shall expire. Thereafter, the Minority Stockholders shall have the absolute right to transfer the Shares subject only to (i) the right of first refusal of TAP and the members of the Travelers Affiliated Group pursuant to Sections 3(b) and 3(f) hereof, (ii) the drag along rights of the members of the Travelers Affiliated Group pursuant to Section 3(g) hereof and (iii) compliance with all applicable laws, rules and regulations.
(f) From and after the expiration or early termination of the Restricted Period, if at any time a Minority Stockholder determines to sell any or all of the Shares (other than to a Permitted Transferee) such Minority Stockholder shall offer (the "Offer") such shares to be transferred of Common Stock (the "Offered Shares") shall give written notice for sale to TAP, and, if TAP determines not to purchase all of the Offered Shares, to TIGI (by registered or certified mail) another member or members of the Travelers Affiliated Group), stating the number of Shares subject to the Company. Such notice shall specify the identity of the proposed transfereeOffer, the cash price at which they are offered for the Offered Shares by the proposed transferee and the any other terms and conditions of the proposed transfer. The date Offer, and TAP and/or TIGI (or such notice is mailed shall be hereinafter referred to other member or members of the Travelers Affiliated Group), as the "notice date" case may be, shall then have the option to purchase, at the price and on the record holder terms offered or on such other terms and conditions as the parties may agree upon, all of the Offered Shares Shares. The option shall be hereinafter referred exercisable by notice given to as the "Offeror."
(2) For a period of thirty (30) calendar such Minority Stockholder within 40 days after receipt of the notice date, from such Minority Stockholder. If within that 40-day period TAP or TIGI (or such other member or members of the Company shall have Travelers Affiliated Group) does not exercise the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
, at any time within 90 days (4or such longer period as is necessary to obtain requisite governmental or regulatory approvals which are being diligently pursued in good faith) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirtysuch option, such Minority Stockholder may, subject to the provisions of the Securities Act, transfer the Offered Shares to a Third Party Purchaser on terms that are no less favorable to such Minority Stockholder than the terms offered to TAP or TIGI (or such other member or members of the Travelers Affiliated Group); provided that if such transfer is not completed within such 90-day option exercise period (or after such longer period during which approvals are being pursued), the ninetieth (90thOffered Shares shall again be subject to this Section 3(f) calendar day and such Minority Stockholder may not sell, assign, transfer, convey, pledge, hypothecate, encumber or otherwise dispose of any shares of Common Stock pursuant to this Section 3(f) for a period of 3 months after the expiration of said thirty-day option exercise such period; provided further, that if such Third Party Purchaser shall be a Competitor, then such Minority Stockholder shall notify TAP and TIGI (or such other member or members of the Travelers Affiliated Group) of its intention to sell such shares of Common stock to a Competitor, and if TAP and TIGI (or such transfer has not taken place prior other member or members of the Travelers Affiliated Group), as the case may be, shall have an additional 15 days during which any of them may agree to said ninetieth (90th) daypurchase such shares of Common Stock from such Minority Stockholder at the price per share offered to such Minority Stockholder by the Competitor. Notwithstanding the foregoing, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used nothing in this Section 5.8, 3(f) shall afford any rights to TAP or any member of the term "transfer" means Travelers Affiliated Group in the case of a sale of any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of Common Stock by a Minority Stockholder (i) pursuant to a registered public offering of Common Stock, (ii) pursuant to Rule 144 under the Company's stock Securities Act or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer (iii) to an Affiliate of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8Minority Stockholder.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise Prior to the sixth anniversary of the Optiondate hereof, or no Stockholder may Transfer any interest in such sharesShares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance except (i) with the following provisions:
(1) Before there can be a valid transfer consent of any shares or any interest therein, the record holder each of the shares to be transferred Sponsors, (the "Offered Shares"ii) shall give written notice through a Public Offering, (by registered or certified mailiii) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise a Sale of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, (iv) through a redemption or share exchange provided in Section 3.3 or (v) through an Exempt Transfer. After the Company shall acquire full right, title and interest to all sixth anniversary of the Offered Shares.
date hereof, no Stockholder may Transfer any Shares except through (4i) Ifa Public Offering, and only if(ii) a Sale of the Company, the option given pursuant to subsection (a)(2iii) an Exempt Transfer, (iv) through a redemption or share exchange provided in Section 3.3 (v) in accordance with Section 3.2 of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8Agreement.
(b) As used in No Transfer of any Shares by any Stockholder shall become effective unless and until the Transferee (unless such Transferee already is party to this Section 5.8Agreement) executes and delivers to the Company and Intermediate Corp. a counterpart or joinder to this Agreement, agreeing to the obligations of the transferring Stockholder. Notwithstanding the immediately preceding sentence, an unaffiliated financial institution to whom Sponsor Shares have been pledged will not have to execute this Agreement unless and until such pledge has been foreclosed upon. Upon such Transfer and such execution and delivery, the term "transfer" means Transferee acquiring Transferred Shares shall be bound by, and entitled to the benefits of, this Agreement in the same manner as the transferring Stockholder; provided that no Transferee of a Sponsor (other than a Permitted Transferee) shall be entitled to any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock director designation rights under Section 2.1, the approval rights under Section 2.2(a), the rights of an Initiating Stockholder under Article IV, or, unless such Transferee is obligated or any legal or equitable interest therein; providedreasonably deems it necessary to qualify the Shares as a venture capital investment (as defined in Department of Labor Regulation CFR § 2510.3-101), however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8rights under Article VI.
(c) None of No Shares may be transferred by a Stockholder (other than pursuant to an effective registration statement under the shares of Securities Act) unless, if requested by the Company's stock purchased on exercise , such Stockholder first delivers to the Company an opinion of the Option counsel, which opinion and counsel shall be transferred on reasonably satisfactory to the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring , to the transfer restrictions imposed by this Section 5.8 and effect that such Transfer is not required to be registered under the repurchase option provided for in Section 5.8Securities Act.
Appears in 1 contract
Samples: Stockholders Agreement (Comdata Network, Inc. Of California)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan and/or the Employee’s employment agreement with the Company, if any), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of 18 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act, in which offering the aggregate gross proceeds to the Company exceed $40,000,000.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated 20 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Neogenix Oncology Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Employee except as permitted by the ROFR Agreement.
(1) Before there can be a valid transfer of any shares or any interest therein, 12.2 In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity Employee’s termination of the proposed transferee, the cash price offered employment for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateany reason, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered Shares at issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the purchase price and on event the terms set forth in subsection Company does not, upon the termination of employment of the Employee (a)(3) of as described above), exercise its option pursuant to this Section 5.8. This option shall be exercisable by 12.2, the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as restrictions set forth in the notice required under subsection (a)(1) balance of this Section 5.8)Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The Company's notice following provisions shall apply to a repurchase under this Section 12.2:
(a) The per share repurchase price of the Shares to be sold to the Company upon exercise of such its option under this Section 12.2 shall be accompanied by full payment for equal to the Offered Shares and, upon Fair Market Value of each such payment by Share determined in accordance with the Company, the Company shall acquire full right, title and interest to all Plan as of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) date of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) termination of this Section 5.8 may take placeemployment; provided, however, that such transfer mustin the event of a termination by the Company for “cause” (as defined in the Plan), in all respects, the per share repurchase price of the Shares to be exactly as proposed in said notice except that such transfer may not take place either before sold to the tenth (10th) calendar day after the expiration Company upon exercise of said thirty-day its option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of under this Section 5.812.2 shall be equal to the Purchase Price.
(b) As used The Company’s option to repurchase the Employee’s Shares in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form event of disposition or transfer termination of shares employment shall be valid for a period of 18 months commencing with the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer date of such shares or interests by will or by the applicable laws termination of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8employment.
(c) None In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option time period provided for in Section 5.812.2(b) for exercise of the Company’s option to repurchase.
(d) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a condition precedent to the validity of any sale or other transfer of any Shares by the Employee that (except as hereinafter otherwise provided) no Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any person or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions set forth in the ROFR Agreement.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.9 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated with this Company, a Third Amended and Restated Stockholders’ Agreement dated March 16, 2010 with this Company and an Amended and Restated Right of First Refusal and Co-Sale Agreement dated March 16, 2010 with this Company, copies of which agreements are available for inspection at the offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Stemline Therapeutics Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee's termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment.
(ii) The Company's option to repurchase the Employee's Shares in the event of termination of employment shall be valid for a period of 18 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee's Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months. The place for such closing shall be at the Company's principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.812 so that such transferee (and all subsequent transferees) shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the provisions of this Section 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) None or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company's stock purchased on exercise securities pursuant to a registration statement filed with the Securities and Exchange Commission.
12.9 The Employee agrees that in the event that the Company effects an initial public offering of the Option shall Common Stock of the Company registered under the Securities Act, the Shares may not be transferred on sold, offered for sale or otherwise disposed of, directly or indirectly, without the prior written consent of the managing underwriter(s) of the offering, for such period of time after the execution of an underwriting agreement in connection with the such offering that all of the Company's books then directors and executive officers agree to be similarly bound.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor shall its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise affecting the value of the Option shall bear an appropriate legend referring Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the transfer restrictions imposed Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated _________, 200__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) The Purchaser shall not, directly or indirectly, sell, assign, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer, or agree to engage in any shares of stock purchased on exercise of the Optionforegoing, any Shares, nor shall any Shares be made subject to sale under execution, attachment, levy or similar process or otherwise be transferred, whether voluntarily or involuntarily or by operation of law or otherwise (each of the foregoing being referred to as a “Transfer”). Any Transfer of Shares shall be void, and the Company shall not be required for any interest purpose whatsoever to recognize any Transfer. In the event of the declaration of a stock dividend, the declaration of an extraordinary dividend payable in such sharesa form other than stock, a recapitalization, a spin-off, a stock split, an adjustment in conversion ratio, a recapitalization, a reclassification or another similar event that affects the Company’s outstanding securities without receipt of consideration, any new, substituted or additional securities or other property (including money paid other than as an ordinary cash dividend) that by any holder reason of such shares event are distributed with respect to any Shares or interests unless such transfer is solely for cash consideration and is made into which Shares as a result become convertible shall immediately be subject to the restrictions set forth in compliance with the following provisions:this paragraph.
(1b) Before there can be a valid transfer of any shares or any interest thereinNotwithstanding the immediately preceding paragraph, the record holder Purchaser may sell Shares to a third party if the Purchaser first offers the Company the right to purchase such Shares in the manner required by this paragraph. If the Purchaser wishes to sell Shares, the Purchaser shall notify the Company in writing (a “Transfer Notice”) describing the material terms of the shares proposed transfer, including the number of Shares proposed to be transferred (transferred, the "Offered Shares") shall give written notice (by registered or certified mail) to proposed transfer price, and the Company. Such notice shall specify the identity name and address of the proposed transferee. The Company shall have the right (the Company’s “Purchase Right”) to purchase all, but not less than all, the cash price offered for Shares subject to the Offered Transfer Notice on the terms described in the Transfer Notice, by delivering to the Purchaser, within 30 days after receiving the Transfer Notice, notice of exercise of the Company’s Purchase Right. The Company may assign its Purchase Rights to any Person. If the Company does not exercise its Purchase Right within the aforementioned time period, the Purchaser may, not later than 90 days after the Company receives the Transfer Notice, consummate a sale of such Shares by on the proposed transferee and the other terms and conditions described in the Transfer Notice. To be valid, however, (i) the sale shall not cause the violation of any federal or state securities laws and, if required by the Company, the Purchaser shall provide the Company with an opinion of counsel satisfactory to the Company to that effect; and (ii) the transferee must agree, in a writing approved by the Company, to be bound by all provisions of this Section 6.7 with respect to the Shares transferred. Any proposed sale on terms and conditions materially different from those described in the Transfer Notice, and any subsequent proposed sale by the Purchaser, shall again be subject to the Company’s Purchase Right. If the Company exercises its Purchase Right, the Purchaser and the Company shall consummate the sale of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as Shares on the "notice date" and terms set forth in the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar Transfer Notice within 60 days after the notice dateCompany receives the Transfer Notice (or within such longer period if specified in the Transfer Notice); provided, however, that if the Transfer Notice provided that the payment for the Shares was to be made in a form other than cash or cash equivalent paid at the time of transfer, the Company shall have the option of paying for the Shares with cash or cash equivalent equal to purchase all (but not less than all) the present value of the Offered Shares at consideration described in the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) daysTransfer Notice.
(3c) The price at which Notwithstanding the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Companyforegoing, the Company shall acquire full right, title and interest Purchaser may Transfer Shares to all any of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place its Affiliates without once again complying with subsection (a) any of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None 6.7, so long as the transferee agrees in writing to be bound by all of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.86.7.
Appears in 1 contract
Samples: Secured Convertible Note Purchase Agreement (Digital Theater Systems Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted [herein] [in the Stockholders Agreement dated ________ between the Company and its stockholders (the “Stockholders Agreement”)] [if the Participant becomes a party thereto, as set forth in the in the Stockholders Agreement dated ________ between the Company and its stockholders (the “Stockholders Agreement”)]. If the Participant becomes a party to the Stockholders’ Agreement by executing a signature page thereto and the terms of this Agreement and the Stockholders’ Agreement conflict, the terms contained in the Stockholders’ Agreement shall govern and supersede any conflicting provision contained in this Section 12].1 1 The first bracket should be used if the Participant is not a party to and not expected to become a party to a stockholders’ agreement containing transfer restrictions and/or buyback provisions. The second bracket should be used if the Participant is or any interest in will become a party to a stockholders’ agreement. In such sharescase other portions of this section 12 should be deleted so that there is no conflict between the stockholders’ agreement and the terms of this agreement. The third bracket and additional language regarding conflicting provisions should be used, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance together with the following provisions:“herein” language if the Company wants to use a generic option agreement and some Participants are or will become a party to the stockholders agreement.
(1) Before there can be a valid transfer of any shares or any interest therein, 12.2 In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity Participant’s termination of the proposed transferee, the cash price offered service for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateany reason, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered Shares at issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of service, Disability or death in accordance with Section 4 hereof). In the purchase price and on event the terms set forth in subsection Company does not, upon the termination of service of the Participant (a)(3) of as described above), exercise its option pursuant to this Section 5.8. This option shall be exercisable by 12.2, the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as restrictions set forth in the notice required under subsection (a)(1) balance of this Section 5.8)Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The Company's notice following provisions shall apply to a repurchase under this Section 12.2:
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of such its option under this Section 12.2 shall be accompanied by full payment for equal to the Offered Shares andFair Market Value of each such Share determined in accordance with the Plan as of the date of repurchase provided, upon such payment however, in the event of a termination by the Company for Cause, the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to [the lesser of the Exercise Price and the Fair Market Value on the date of the repurchase] OR [par value]].2
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of [twelve]([12]) months commencing with the date of such termination of service.3
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall acquire full rightnotify the Participant, title or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed or sent by email by the Company up to and interest to all including the last day of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise time period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.812.2(ii) above for exercise of the Company’s option to repurchase. 3 If the Company repurchases a participant’s shares within six months of their issuance the company will incur a variable accounting charge. Therefore the repurchase period should be not less than nine months so the repurchase can occur after the participant has held the shares for six months.
(iv) The notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
Appears in 1 contract
Samples: Employment Agreement (Hydrofarm Holdings Group, Inc.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on The Shares acquired by the Employee pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Employee except as permitted herein.
(1b) Before there can be a valid transfer of any shares or any interest therein, In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity Employee’s termination of the proposed transferee, the cash price offered employment for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateany reason, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered Shares at issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the purchase price and on event the terms Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12(b), the restrictions set forth in subsection (a)(3) the balance of this Agreement shall not thereby lapse, and the Employee, for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The following provisions shall apply to a repurchase under this Section 5.8. This 12(b):
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12(b) shall be exercisable equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment; provided, however, in the event of a termination by the Company by mailing for “cause” (by registered or certified mail) written notice as defined in the Plan), the per share repurchase price of exercise the Shares to be sold to the Offeror prior Company upon exercise of its option under this Section 12(b) shall be equal to the end of said thirty (30) daysPurchase Price.
(3ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of 12 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12(b), the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12(b)(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price at which is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest. In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may purchase elect (i) to establish a segregated account in the Offered amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (ii) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
(c) Upon acquiring any Shares pursuant to the exercise of such option the Option, the Employee agrees to become a party to any stockholders’ agreement among the Company and all or some of its stockholders (a “Company Stockholders’ Agreement”).
(d) If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of the Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the cash price offered Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation distributed with respect to the Shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
(e) If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Offered Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
(f) The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
(g) The Employee agrees that in the event the Company proposes to offer for sale to the public any of its equity securities and such Employee is requested by the proposed transferee Company and any underwriter engaged by the Company in connection with such offering to sign an agreement restricting the sale or other transfer of Shares, then it will promptly sign such agreement and will not transfer, whether in privately negotiated transactions or to the public in open market transactions or otherwise, any Shares or other securities of the Company held by him or her during such period as is determined by the Company and the underwriters, not to exceed 180 days following the closing of the offering, plus such additional period of time as may be required to comply with Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules thereto (as set forth in such period, the notice required under subsection (a)(1) of this Section 5.8“Lock-Up Period”). The Company's notice of exercise of such option Such agreement shall be accompanied by full payment for in writing and in form and substance reasonably satisfactory to the Offered Company and such underwriter and pursuant to customary and prevailing terms and conditions. Notwithstanding whether the Employee has signed such an agreement, the Company may impose stop-transfer instructions with respect to the Shares andor other securities of the Company subject to the foregoing restrictions until the end of the Lock-Up Period.
(h) The Employee acknowledges and agrees that neither the Company, upon such payment its stockholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company shall acquire full right, title and interest to all make a public offering of the Offered Sharesits securities or to be acquired by or merged with or into another firm or entity.
(4i) If, and only if, All certificates representing the option given Shares to be issued to the Employee pursuant to subsection (a)(2) this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated , 200 with this Company, a copy of this Section 5.8 which Agreement is not exercisedavailable for inspection at the offices of the Company or will be made available upon request.” In addition, so long as a Company Stockholders’ Agreement is in effect, all certificates representing the transfer proposed in Shares to be issued to the notice given Employee pursuant to subsection (a)(1) this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in a Stockholders’ Agreement dated , 200 with this Company, a copy of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before which Agreement is available for inspection at the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares offices of the Company's stock Company or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8made available upon request.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Telx Group, Inc.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 13.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
13.2 In the event of the termination of Employee’s employment for Cause (as defined in the Plan), the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement. In the event the Company does not, upon any such termination of employment of the Employee (as described above), exercise its option pursuant to this Section 13.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such sharesrestrictions. The following provisions shall apply to a repurchase under this Section 13.2 and shall be in addition to, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made not in compliance with place of, the following provisionsprovisions set forth in Article 4 hereof:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 13.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment, except that the per share repurchase price of the Shares subject to the Lapsing Repurchase Right shall be the Exercise Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of eighteen (18) months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 13.2, the Company shall notify the Employee, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 13.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at which, and the time and date on which, payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
13.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
13 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 13.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 13.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 13.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
13.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
13.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
13.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the transfer restrictions imposed by contained in this Section 5.8 Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase option provided pursuant to this Agreement.
13.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
13.8 The provisions of Sections 13.1, 13.2 and 13.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
13.9 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for in Section 5.8a period not to exceed 180 days following the effectiveness of such registration.
13.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
13.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS SET FORTH IN AN INCENTIVE STOCK OPTION AGREEMENT DATED WITH THIS COMPANY, A COPY OF WHICH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY OR WILL BE MADE AVAILABLE UPON REQUEST.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Coley Pharmaceutical Group, Inc.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant's termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service.
(ii) The Company's option to repurchase the Participant's Shares in the event of termination of service shall be valid for a period of eighteen (18) months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant's Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company's principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant's notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse, siblings, children, children-in-law and grandchildren or to a trust for the benefit of any such person, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing to the Company as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the transfer restrictions imposed by contained in this Section 5.8 Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase option provided pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for in Section 5.8a period not to exceed 180 days following the effectiveness of such registration.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee's termination of employment for "cause" (as defined in the Plan), the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement. In the event the Company does not, prior to the first anniversary of the termination of employment of the Employee for "cause" (as defined in the Plan), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company's option to repurchase the Employee's Shares in the event of termination of employment shall be valid for a period of one year commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee's Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than 60 days after the giving of the acceptance notice. The place for such closing shall be at the Company's principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration statement.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Altus Pharmaceuticals Inc.)
Restrictions on Transfer of Shares. The undersigned (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise and each of the Optionundersigned if more than one) hereby makes the following further agreements, representations and warranties regarding the restrictions on the transferability of the Shares:
5.1 I agree that I will not directly or indirectly sell, assign, pledge, distribute, donate, or otherwise transfer or dispose of, or offer to do any of the foregoing with respect to, any of the Shares which I purchase from the Company, or any beneficial interest in such sharesShares, by any holder of unless either (i) such shares or interests unless such transfer is solely for cash consideration Shares are registered under and is made sold in compliance accordance with the following provisions:
(1) Before there can be a valid transfer Securities Act and the rules and regulations promulgated thereunder, and are registered or qualified under and sold in accordance with the provisions of any shares applicable state securities laws, or any interest therein, the record holder of the shares to be transferred (the "Offered Shares"ii) shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price has determined that exemptions from such registration and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) daysqualification requirements are available.
5.2 I understand and agree that a legend will be stamped on each certificate representing the Securities substantially in the following form: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (3) The price at which THE "SECURITIES ACT"), OR QUALIFIED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE SHARES REPRESENTED HEREBY CANNOT BE SOLD, ASSIGNED, PLEDGED, DISTRIBUTED, DONATED OR OTHERWISE TRANSFERRED OR DISPOSED OF WITHOUT SUCH REGISTRATION UNDER THE SECURITIES ACT AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS, UNLESS THE COMPANY DETERMINES THAT EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION REQUIREMENTS ARE AVAILABLE.
5.3 I understand and agree that the Company may purchase issue such stop transfer instructions to its transfer agents, if any, as it may deem necessary to enforce the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Sharesabove transfer restrictions.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Samples: Subscription Agreement (Ednet Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest No Transfers Unless Authorized and in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance Compliance with the following provisions:this Agreement.
(1) Before there can None of the Option Shares now owned or hereafter acquired shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of or encumbered, whether voluntarily or by operation of law (each, a valid transfer "Transfer"), unless such Transfer is in compliance with all foreign, federal and state securities laws (including, without limitation, the Act), and such Transfer is in accordance with the terms and conditions of this Section 7. In connection with any Transfer of Option Shares, the Company may require an opinion of counsel to the transferor, satisfactory to the Company, that such Transfer is in compliance with all foreign, federal and state securities laws (including without limitation, the Act). The Optionee agrees to give the Company prompt notice of any shares Transfer of Option Shares to the Optionee's spouse, parents, children (natural or adopted), stepchildren or grandchildren or a trust for their benefit (a "Permitted Transferee") pursuant to Section 7(b) hereof. Any attempted disposition of Option Shares not in accordance with the terms and conditions of this Agreement shall be null and void, and the Company shall not reflect on its records any interest thereinchange in record ownership of any Option Shares pursuant to any such disposition, shall otherwise refuse to recognize any such disposition and shall not in any way give effect to any such disposition of any Option Shares.
(2) Prior to making any Transfer of Option Shares (other than to a Permitted Transferee), the record holder Optionee shall deliver written notice (the "Transfer Notice") to the Company. The Transfer Notice shall disclose in reasonable detail the identity of the prospective transferees, the number of shares to be transferred Transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transferTransfer. The date such notice is mailed By giving the Transfer Notice, the Optionee shall be hereinafter referred deemed to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, have granted the Company shall have the an option to purchase all (the Offered Shares. The Company may purchase all, but not less than all) , of the Offered Shares at upon the purchase price same terms and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (conditions as these set forth in the Transfer Notice by delivering written notice required under subsection of such election to the Optionee within 20 days after the receipt of the Transfer Notice by the Company (a)(1) of this Section 5.8the "Election Period"). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, If the Company shall has not elected to purchase or otherwise acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant Shares prior to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirtythe Election Period, the Optionee may Transfer such Offered Shares at a price and on terms no more favorable to the transferees thereof than specified in the Transfer Notice during the 30-day option exercise period or after the ninetieth (90th) calendar day after immediately following the expiration of said thirty-day option exercise period, and if such transfer has the Election Period (the "Transfer Period"). Any Offered Shares that are not taken place prior Transferred within the Transfer Period shall be subject to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c7(a) None upon any subsequent Transfer. If the Company has elected to purchase any Offered Shares hereunder, the Transfer of such Offered Shares shall be consummated as soon as practical after the delivery of the shares election notice to the Optionee, but in any event within 15 days after the expiration of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8Election Period.
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Cisco Systems Inc)
Restrictions on Transfer of Shares. DETAILS OF THE PURCHASE OPTION ------------------------------------------------------------------
(a) There can Any Shares which are subject to the Purchase Option shall not be no valid transfer (transferred by the Employee except as hereinafter defined) permitted herein. Until the termination of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest thereinthis Agreement, the record holder of Shares which are subject to the shares to Purchase Option may not be transferred (by the "Offered Shares") shall give written notice (by registered or certified mail) Employee unless and until the transferee agrees, in a form satisfactory to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered to be bound by this Agreement and to sell any transferred Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; herein provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8In the event the Company shall be entitled to elect to exercise the Purchase Option, the term "transfer" means any saleCompany shall be deemed to have made such election with respect to all Shares which are Purchase Stock, encumbranceunless it shall have given to the Employee written notice of its non-election to exercise the Purchase Option, pledgein whole or in part, gift or other form of disposition or transfer of shares within ninety (90) days of the Company's stock or date of the event entitling the Company to exercise the Purchase Option. If the Company shall have given the Employee written notice of its election to exercise the Purchase Option in part, any legal or equitable interest therein; providedremaining Shares subject to the Purchase Option hereunder shall thenceforth no longer be subject to the Purchase Option, however, that the term "transfer" does not include a transfer of except as such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8notice may otherwise provide.
(c) None In the event the Company shall be entitled to and shall have determined to elect to exercise the Purchase Option, it shall give to the Employee a written notice specifying a date for the Closing, which date shall be not more than ten (10) business days after the giving of the shares of such notice. The Closing shall take place at the Company's stock purchased on exercise of principal offices in New Hampshire, or such other location as the Option Company may reasonably designate in such notice. If the Company shall be transferred on deemed to have elected to exercise the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.Purchase Option
Appears in 1 contract
Samples: Non Qualified Stock Option and Repurchase Agreement (Ekco Group Inc /De/)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1i) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2ii) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3a)(iii) of this Section 5.85.11. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3iii) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the lower of (a) the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1a)(i) of this Section 5.8)5.11) or (b) the greater of the purchase price of the shares pursuant to Section 2.2 or fair market value of the shares of stock on the notice date, determined in accordance with Section 4.2 of the Plan, except that if at the notice date, the Company's common stock is not publicly traded, the fair market value of the shares of stock shall be determined for purposes of this Section 5.11 on the basis of the following formula: eight (8) times the Company's pre-tax earnings for the Company's most recently audited fiscal year divided by the number of outstanding shares of the Company's common stock (including shares issuable upon the conversion of outstanding shares of preferred stock) on the notice date. The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4iv) If, and only if, the option given pursuant to subsection (a)(2a)(ii) of this Section 5.8 5.11 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1a)(i) of this Section 5.8 5.11 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.85.11.
(b) As used in this Section 5.85.11, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the transferee or donee agrees to be bound by the provisions of this Section 5.85.11.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 5.11 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 5.11 and to the repurchase option provided for in Section 5.85.10.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1i) Before there can be a valid transfer of any shares or any -any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2ii) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3a)(iii) of this Section 5.85.11. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3iii) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the lower of (a) the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1a)(i) of this Section 5.8)5.11) or (b) the greater of the purchase price of the shares pursuant to Section 2.2 or the fair market value of the shares of stock on the notice date, determined in accordance with Section 1.18 of the Plan. The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4iv) If, and only if, the option given pursuant to subsection (a)(2a)(ii) of this Section 5.8 5.11 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1a)(i) of this Section 5.8 5.11 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option to exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.85.11.
(b) As used in this Section 5.85.11, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the transferee or donee agrees to be bound by the provisions of this Section 5.85.11.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 5.11 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 5.11 and to the repurchase option provided for in Section 5.85.10.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be Seller understands that Headway has no valid transfer (obligation to register the Shares under the Securities Act of 1933, as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred amended (the "Offered SharesAct") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee), and, accordingly, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred subject to as restrictions under the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateAct, the Company rules and regulations promulgated thereunder and applicable state securities laws. At the Closing, Headway shall have deliver to Seller one or more certificates in proper form in the option name of Seller evidencing the Shares being issued on such date. Each certificate shall bear an appropriate legend as to purchase all (but not less than all) the lack of registration of the Offered Shares at and the purchase price and resulting restrictions on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8transfer.
(b) As used No Shares shall be transferable except in compliance with the provisions of this Section 5.8, 1.9(b). Seller shall be restricted from transferring any Shares for a period of two years from the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest thereinClosing Date; provided, howeverthat Seller shall have the right, in the event of a reorganization, consolidation or merger to which Headway is a party, to exchange the Shares for that kind and number of shares or other securities, cash of property that holders of the Common Stock are entitled to receive as a result of such reorganization, consolidation or merger; and provided, further, that (i) Seller may transfer any or all of the term "transfer" does not include a transfer of such shares or interests Shares to the Stockholders, who agree, by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees their signature to this Agreement, to be bound by the provisions of this Section 5.8.
1.9 and (cii) None the Stockholders may transfer any or all of such Shares to up to five employees of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize Business; provided, that, prior to such transfer, any such transfer of any such shares or any interest therein unless and until all applicable employee shall agree in a writing reasonably satisfactory to Headway to be bound by the provisions of this Section 5.8 have been complied with in all respects1.9. The certificates Thereafter, Seller agrees that, prior to any proposed transfer of stock evidencing shares any Shares, it shall give Headway notice of stock purchased on exercise its intention to effect such transfer. Such notice shall describe briefly the manner and circumstances of the Option proposed transfer in sufficient detail, and shall bear an appropriate legend referring include such information as is reasonably necessary to enable counsel for Headway to render the transfer restrictions imposed opinion contemplated by this Section 5.8 1.9(b). If, in the opinion of such counsel, the proposed transfer of such Shares may be effected without registration or qualification thereof under the Act or applicable state securities laws, Headway, as promptly as is practicable, shall notify Seller of such opinion, whereupon Seller shall be entitled to transfer such Shares in accordance with the terms of its notice. Unless, in the opinion of such counsel, subsequent disposition of such Shares by the transferee may require such registration or qualification, Headway shall promptly on such transfer deliver certificates for such Shares not bearing the restrictive legend contemplated above. If, in the opinion of such counsel, subsequent disposition by the transferee of such Shares may require such registration or qualification, Seller shall not transfer such Shares unless and until its transferee confirms to Headway in writing its agreement to be bound by the repurchase option provided for provisions of this Section 1.9(b). If, in Section 5.8the opinion of Headway's counsel, the proposed transfer may not be effected without registration or qualification thereof, Seller shall not transfer the same until such registration or qualification is effected.
Appears in 1 contract
Samples: Asset Purchase Agreement (Headway Corporate Resources Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to $.01.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of 18 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of the Option shall bear an appropriate legend referring Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated [grant date] with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Restrictions on Transfer of Shares. DETAILS OF THE PURCHASE OBLIGATION
(a) There can Any Shares which are subject to the Purchase Obligation shall not be no valid transfer (transferred by the [BOARD MEMBER] except as hereinafter defined) permitted herein. Until the termination of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest thereinthis Agreement, the record holder of Shares which are subject to the shares to Purchase Obligation may not be transferred (by the "Offered Shares") shall give written notice (by registered or certified mail) [BOARD MEMBER] unless and until the transferee agrees, in a form satisfactory to the Company. Such notice shall specify , to be bound by this Agreement and to sell any transferred Shares to the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to Company as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offerorherein provided."
(2b) For Within sixty (60) days following the date the [BOARD MEMBER] ceases to be a period of thirty (30) calendar days after [BOARD MEMBER] and if the notice date[BOARD MEMBER] holds any Purchase Stock, then, the Company shall have give to the option to [BOARD MEMBER] a written notice specifying a date for the Closing for the sale by the [BOARD MEMBER] and the purchase all (but not less than all) by the Company of the Offered Shares Purchase Stock, which date shall be not more than ten (10) business days after the giving of such notice. The Closing shall take place at the Company's principal offices in New Hampshire, or such other location as the Company may reasonably designate in such notice. If the company shall fail to give the notice provided for above, within the specified period of time, then the Closing shall be on the ninetieth (90th) day following the date the [BOARD MEMBER] ceased to be a [BOARD MEMBER] or if not a business day, the next business day.
(c) At the Closing, the [BOARD MEMBER] shall deliver the Purchase Stock being purchased by the Company against the simultaneous delivery to the [BOARD MEMBER] of the purchase price (by certified or bank cashier's check or in such other form as mutually agreed to) for the number of shares of the Purchase Stock then being purchased. In the event that the [BOARD MEMBER] fails so to deliver the shares of Purchase Stock to be purchased, the Company may elect (i) to establish a segregated account in the amount of the Purchase Price, such account to be turned over to the [BOARD MEMBER] upon delivery of such shares of Purchase Stock, and on (ii) immediately to take such action as is appropriate to transfer record title of such of the Purchase Stock from the [BOARD MEMBER] to the Company and to treat the [BOARD MEMBER] and such shares of the Purchase Stock in all respects as if delivery of such shares of the Purchase Stock had been made as required by this Agreement. The [BOARD MEMBER] hereby irrevocably grants the Company a power of attorney for the purpose of effectuating the terms set forth in subsection of the preceding sentence.
(a)(3d) If the Company shall pay a stock dividend or declare a stock split on or with respect to any of the Company's Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, whether before or after the exercise of this Section 5.8. This option Option, the number of shares of stock or other securities of the Company issued with respect to the Purchase Stock then subject to the Purchase Obligation shall be exercisable added to the Purchase Stock then subject to the Purchase Obligation without any change in the aggregate purchase price. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation distributed with respect to the Purchase Stock then subject to the Purchase Obligation shall be added to the Purchase Stock covered by the Purchase Obligation without any change in the aggregate purchase price. Without limiting the generality of the foregoing, the [BOARD MEMBER] shall be entitled to retain any and all cash dividends paid by the Company by mailing (by registered or certified mail) written notice of exercise to on the Offeror prior to the end of said thirty (30) daysShares.
(3e) If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to any capital reorganization, whether before or after the exercise of this Obligation, there shall be substituted for the Purchase Stock then covered by the Purchase Obligation such amount and kind of securities as are issued in such subdivision, combination, reclassification, or capital reorganization in respect of the Purchase Stock subject to the Purchase Obligation immediately prior thereto, without any change in the aggregate purchase price.
(f) If the Company shall be completely liquidated, then the Purchase Obligation shall cease and terminate as of the date of such liquidation and the [BOARD MEMBER] shall hold the Shares free of the Purchase Obligation.
(g) The price at Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the Company may purchase right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been sold, assigned or otherwise transferred, from and after any sale, assignment or transfer of any Shares made in violation of this Agreement.
(h) All certificates representing any Shares to be issued to the Offered Shares [BOARD MEMBER] pursuant to the exercise of such option this Option which are subject to the Purchase Obligation shall have endorsed thereon a legend substantially as follows: "The shares represented by this certificate are subject to a Stock Option and Repurchase Agreement dated as of ________, 1997 between the Corporation and [NAME OF BOARD MEMBER], a copy of which Agreement is available for inspection at the principal offices of the Company or will be made available without charge upon request."
(i) This Article 7 shall not restrict the cash price offered for the Offered Shares transfer by the proposed transferee (as set forth in [BOARD MEMBER] of shares, if any, which are not acquired pursuant to the notice required under subsection (a)(1) exercise of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares andOption or which are not, upon such payment by the Companyor cease to be, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring subject to the transfer restrictions imposed by this Section 5.8 and to Purchase Obligation in accordance with the repurchase option provided for in Section 5.8terms hereof.
Appears in 1 contract
Samples: Non Qualified Stock Option and Repurchase Agreement (Ekco Group Inc /De/)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the $.01.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of 18 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act, in which offering the aggregate gross proceeds to the Company exceed $10,000,000 and in which the price per share of such securities equals or exceeds $5.00 (such price subject to equitable adjustment in the event of any stock split, stock dividend, combination, reorganization, reclassification or other similar event).
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated ________, 200__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Invivo Therapeutics Holdings Corp.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise None of the OptionShares now owned or hereafter acquired shall be sold, assigned, transferred, pledged, hypothecated, given away or in any interest in such sharesother manner disposed of or encumbered, whether voluntarily or by any holder operation of such shares or interests law, unless such transfer is solely for cash consideration and is made in compliance with all applicable securities laws (including, without limitation, the Act), and such disposition is in accordance with the terms and conditions of this Section 4. In connection with any transfer of Shares, the Company may require the transferor to provide at his or her own expense an opinion of counsel to the transferor, satisfactory to the Company, that such transfer is in compliance with all foreign, federal and state securities laws (including, without limitation, the Act). Any attempted disposition of Shares not in accordance with the terms and conditions of this Section 4 shall be null and void, and the Company shall not reflect on its records any change in record ownership of any Shares as a result of any such disposition, shall otherwise refuse to recognize any such disposition and shall not in any way give effect to any such disposition of any Shares. Subject to the foregoing general provisions, Shares may be transferred pursuant to the following provisionsspecific terms and conditions:
(1b) Before there can Prior to an Initial Public Offering, the Grantee may sell, assign, transfer or give away any or all of the Shares to Permitted Transferees or in connection with a Sale Event as contemplated by Section 3.5, and the Shares may be transferred by operation of law upon death to the estate, any legal representatives, executors and administrators of the Grantee or any Permitted Transferee, provided, however, that any such Permitted Transferee shall agree, as a valid transfer condition to such Transfer, to be subject to the provisions of this Agreement (including without limitation Sections 3, 4 and 9.8) as if the Shares were still held by him or her and shall deliver a written acknowledgment to such effect to the Company, and all Shares shall remain subject to the Repurchase pursuant to Sections 3.2, 3.3 and 3.5 in the hands of any shares such transferee. Further, in the event (prior to an Initial Public Offering) the Grantee or any interest thereinPermitted Transferee holds Vested Shares following a Termination Event and such Vested Shares are not purchased by the Company or an assignee pursuant to Section 3.3 within the period contemplated by Section 3.4, then such Vested Shares may be transferred to third parties in bona fide sales for value following compliance with Section 4(d).
(c) Following an Initial Public Offering, Vested Shares may be transferred freely provided that transfer complies with Section 4(a), but Restricted Shares may be transferred only to Permitted Transferees or by operation of law as and under the conditions contemplated by Section 4(b), provided that such Restricted Shares shall in all events remain subject to the Repurchase.
(d) In the event following any Termination Event but prior to an Initial Public Offering that the Grantee (or any Permitted Transferee holding Shares subject to this Section 4(d)) desires to sell or otherwise transfer all or any part of any Vested Shares which the Company and its assignees have not purchased pursuant to Section 3.3, the record holder Grantee or such Permitted Transferee first shall give written notice to the Company of his intention to make such transfer. Such notice shall state the shares number of Vested Shares which the Grantee proposes to be transferred sell (the "Offered Shares") shall give written notice (by registered or certified mail) ), the price and the terms at which the proposed sale is to be made and the Company. Such notice shall specify the identity name and address of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar At any time within 10 days after the receipt of such notice dateby the Company, the Company shall have the option or its assigns may elect to purchase all (but not less than all) or any portion of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth and specified in the notice. The Company or its assigns shall exercise this right by mailing or delivering written notice required under subsection (a)(1) to the Grantee within the foregoing 10-day period. If the Company or its assigns elect to exercise its purchase rights of this Section 5.84(d), the closing for such purchase shall, in any event, take place within 30 days after the receipt by the Company of the initial notice from the Grantee. The Company's notice of In the event that the Company or its assigns do not elect to exercise of such option shall be accompanied by purchase right, or in the event that the Company or its assigns do not pay the full payment for purchase price within such 30-day period, the transferor may, within 60 days thereafter, sell the Offered Shares and, upon to the proposed transferee and at the same price and on the same terms as specified in his notice. Any Shares purchased by such payment by proposed transferee shall no longer be subject to the Company, the Company shall acquire full right, title and interest to all terms of the Offered Shares.
(4) Ifthis Agreement, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, 4(d) shall terminate upon the transfer proposed in the notice given pursuant to subsection (a)(1) closing of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8an Initial Public Offering.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment or for any reason, the Company shall have the option, but not the obligation, to repurchase all or any part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The following provisions shall apply to a repurchase under this Section 12.2;
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment, death or Disability shall be valid for a period of six (6) months commencing with the date of such termination, death or Disability.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or any interest in such sharescase of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by any holder the Company up to and including the last day of such shares or interests unless such transfer is solely the time period provided for cash consideration and is made in compliance with Section 12.2(ii) for exercise of the following provisions:Company’s option to repurchase.
(1iv) Before there can The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the Company within sixty (60) days after its receipt of written notice from the Employee. The Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the Closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months if required under applicable laws accounting rules in effect at the time. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of descent Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or her notice to the designated transferee at the price and distribution or a gift terms designated in the Employee’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with in all respects. The certificates of stock evidencing shares of stock purchased on exercise respect to any proposed voluntary transfer of the Option Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall bear an appropriate legend referring not apply to transfers by the Employee (a) to the transfer restrictions imposed trustee or trustees of a trust revocable solely by him or her, (b) to one or more members of his or her Immediate Family, (c) to a trust for the benefit of himself or herself and/or one or more members of his or her Immediate Family, (d) to a partnership all of the partners of which are him or her and/or a Permitted Transferee of the type described in clauses (a) through (e) of this clause (iv), (e) to a limited liability company or similar entity all of the members of which are him or her and/or a Permitted Transferee of the type described in clauses (a) through (e) of this clause (iv), (f) as a bona fide gift or donation to a charitable organization, (g) to his or her guardian or conservator, or (h) in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement (including the Company’s rights under Section 5.8 12.1), and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the repurchase option provided for in Section 5.8effectiveness of such transfer.” As used herein, the term “Immediate Family Member” shall mean the Employee’s spouse or equivalent, former spouse, parents, children, stepchildren, adoptive relationships, sisters, brothers, nieces, nephews and grandchildren.
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Paratek Pharmaceuticals Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer NO TRANSFERS UNLESS AUTHORIZED AND IN COMPLIANCE WITH THIS AGREEMENT.
(as hereinafter definedi) of any shares of stock purchased on exercise None of the OptionShares now owed or hereafter acquired by the Grantee shall be sold, assigned, transferred, pledged, hypothecated, given away or in any interest in such sharesother manner disposed of or encumbered, whether voluntarily or by any holder operation of such shares or interests law, unless such transfer is solely for cash consideration and is made in compliance with all foreign, federal and state securities laws (including, without limitation, the following provisions:Act), and such disposition is in accordance with the terms and conditions of this SECTION 4. In connection with any transfer of Shares, the Company may require an opinion of counsel to the transferor, satisfactory to the Company, that such transfer is in compliance with all foreign, federal and state securities laws (including without limitation, the Act). No Restricted Shares may be transferred, sold, assigned or given away, except as set forth in SECTIONS 4(b) OR 4(c) hereof. The Grantee agrees to give the Company prompt notice of any transfer of Shares to a Permitted Transferee as contemplated under SECTION 4(b) hereof. Any attempted disposition of Shares not in accordance with the terms and conditions of this Agreement shall be null and void, and the Company shall not reflect on its records any change in record ownership of any Shares pursuant to any such disposition, shall otherwise refuse to recognize any such disposition and shall not in any way give effect to any such disposition of any Shares.
(1ii) Before there can be a valid Prior to making any transfer of any shares or any interest thereinVested Shares (other than to a Permitted Transferee for which notice shall be given as set forth in SECTION 4(a)(i) hereof), the record holder Grantee shall deliver written notice (the "Transfer Notice") to the Company. The Transfer Notice shall disclose in reasonable detail the identity of the prospective transferees, the number of shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the such proposed transfer. The date such notice is mailed By giving the Transfer Notice, the Grantee shall be hereinafter referred deemed to as have granted the "notice date" and Company an option to purchase the record holder Offered Shares. The Company may purchase all or any portion of the Offered Shares shall be hereinafter referred upon the same terms and conditions as those set forth in the Transfer Notice by delivering written notice of such election to as the "Offeror."
(2) For a period of thirty (30) calendar Grantee within 20 business days after the notice date, Transfer Notice has been given to the Company shall have (the option "Election Period"). If the Company has not elected to purchase or otherwise acquire all (but not less than all) of the Offered Shares prior to the expiration of the Election Period, the Grantee may transfer such Vested Shares at the purchase a price and on terms no more favorable to the terms set forth transferees thereof than specified in subsection the Transfer Notice during the 30-day period immediately following the expiration of the Election Period (a)(3) the "Transfer Period"). Any Offered Shares not so transferred within the Transfer Period shall be subject to the provisions of this Section 5.8SECTION 4(a) upon any subsequent transfer. This option shall be exercisable by If the Company by mailing (by registered or certified mail) written notice of exercise has elected to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the any Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercisedhereunder, the transfer proposed of such Offered Shares shall be consummated as soon as practical after the deliver of the election notice to the Executive, but in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day any event within 15 days after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8Election Period.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Samples: Restricted Stock Agreement (Servicesoft Technologies Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee's termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment provided, however, in the event of a termination by the Company for "cause" (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company's option to repurchase the Employee's Shares in the event of termination of employment shall be valid for a period of 18 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee's Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months. The place for such closing shall be at the Company's principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated _________, 200__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment, provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of eighteen (18) months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six (6) months, then the Closing Date may be extended by the Company until no more than ten (10) days after such Shares have been held by the Employee for six (6) months. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration plus such additional period of time as may be required to comply with Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules thereto.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 13.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
13.2 In the event of the termination of Employee’s employment for Cause (as defined in the Plan), the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement. In the event the Company does not, upon any such termination of employment of the Employee (as described above), exercise its option pursuant to this Section 13.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such sharesrestrictions. The following provisions shall apply to a repurchase under this Section 13.2 and shall be in addition to, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made not in compliance with place of, the following provisionsprovisions set forth in Article 4 hereof:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 13.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment, except that the per share repurchase price of the Shares subject to the Lapsing Repurchase Right shall be the Exercise Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of eighteen (18) months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 13.2, the Company shall notify the Employee, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 13.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at which, and the time and date on which, payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
13.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
13 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 13.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 13.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 13.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
13.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
13.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
13.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the transfer restrictions imposed by contained in this Section 5.8 Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase option provided pursuant to this Agreement.
13.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
13.8 The provisions of Sections 13.1, 13.2 and 13.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
13.9 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for in Section 5.8a period not to exceed 180 days following the effectiveness of such registration.
13.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
13.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS SET FORTH IN AN INCENTIVE STOCK OPTION AGREEMENT DATED JANUARY 19, 2005 WITH THIS COMPANY, A COPY OF WHICH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE OFFICES OF THE COMPANY OR WILL BE MADE AVAILABLE UPON REQUEST.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Coley Pharmaceutical Group, Inc.)
Restrictions on Transfer of Shares. 12.1 The Shares acquired by the Employee pursuant to the exercise of the Option granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself, his heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The following provisions shall apply to a repurchase under this Section 12.2:
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the lesser of (a) There can the Fair Market Value of each such Shares, determined in accordance with the Plan as of the date of such termination, and (b) the Purchase Price.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be no valid transfer for a period of 18 months commencing with the date of such termination of employment.
(as hereinafter definediii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of any shares death, his Survivor, in writing of stock purchased on its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Company’s option to repurchase.
(1iv) Before there can The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within 60 days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution or may not accept such offer in part. Such acceptance notice shall fix a gift time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than 60 days after the giving of the acceptance notice. The place for such shares if closing shall be at the donee Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six months after the giving of notice by the Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his spouse or children or to a trust for the benefit of his spouse or children, (b) transfers by the Employee to his guardian or conservator, and (c) transfers by the Employee, in the event of his death, to his Survivors or to trustee(s) under his will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Dicerna Pharmaceuticals Inc)
Restrictions on Transfer of Shares. 12.1 The Shares acquired by the Participant pursuant to the exercise of the Option granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of the Agreement, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The following provisions shall apply to a repurchase under this Section 12.2:
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service; provided, however, in the event of a termination of the Agreement by the Company for Cause, the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the lesser of (a) There can the Fair Market Value of each such Shares determined in accordance with the Plan as of the date of such termination, and (b) the Purchase Price.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be no valid transfer for a period of 18 months commencing with the date of such termination of service.
(as hereinafter definediii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of any shares death, his or her Survivor, in writing of stock purchased on its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Company’s option to repurchase.
(1iv) Before there can The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his Survivors or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement, dated , 200 , with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Dicerna Pharmaceuticals Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein. Notwithstanding the foregoing, the provisions of this Section 12 shall not apply if the Shares are covered by a separate Restricted Stock Agreement Terms and Conditions attached hereto (e.g. in connection with grants of options at $.01 per share made to U.S. based employees in May 2001).
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of eighteen (18) months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Employee. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Employee’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Employee to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Employee to his or her guardian or conservator, and (c) or transfers by the Employee, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the Securities Act, in which offering the aggregate gross proceeds to the Company exceed $10,000,000 and in which the price per share of such securities equals or exceeds $5.00 (such price subject to equitable adjustment in the event of any stock split, stock dividend, combination, reorganization, reclassification or other similar event).
12.9 If, in connection with a registration statement filed by the Company pursuant to the Securities Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement with the repurchase option provided Company, a copy of which Agreement is available for in Section 5.8inspection at the offices of the Company or will be made available upon request.”
Appears in 1 contract
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 13.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
13.2 In the event of the termination of Participant’s employment, directorship or consultancy for Cause (as defined in the Plan), the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement. In the event the Company does not, upon any such termination of employment, directorship or consultancy of the Participant (as described above), exercise its option pursuant to this Section 13.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such sharesrestrictions. The following provisions shall apply to a repurchase under this Section 13.2 and shall be in addition to, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made not in compliance with place of, the following provisionsprovisions set forth in Article 4 hereof:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 13.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination, except that the per share repurchase price of the Shares subject to the Lapsing Repurchase Right shall be the Exercise Price.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of employment, directorship or consultancy shall be valid for a period of eighteen (18) months commencing with the date of such termination.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 13.2, the Company shall notify the Participant, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 13.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at which, and the time and date on which, payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
13.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent and distribution or a gift of such shares if written notice from the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respectsParticipant. The certificates of stock evidencing shares of stock purchased Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on exercise of the Option such purchase (“Closing Date”) which shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.not be less than ten (10) nor more than sixty
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Coley Pharmaceutical Group, Inc.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant's termination of service for "cause" (as defined in the Plan), the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement. In the event the Company does not, upon the termination of service of the Participant for "cause" (as defined in the Plan), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company's option to repurchase the Participant's Shares in the event of termination of service shall be valid for a period of one year commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant's Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than sixty days after the giving of the acceptance notice. The place for such closing shall be at the Company's principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Altus Pharmaceuticals Inc.)
Restrictions on Transfer of Shares. For a period commencing on the Closing Date and ending on the fifth anniversary of the Closing Date, the Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (aeach, a "TRANSFER") There can be no valid any of the Shares (or the Underlying Common Shares), without the prior express written consent of the Company, PROVIDED, HOWEVER, that the foregoing restriction on transfer shall not apply (i) if Capital Z Financial Services Fund II. L.P. ("CAPITAL Z") Beneficially Owns (as hereinafter defineddefined in the Purchase Agreement referred to below) less than (A) fifty percent (50%) of any the number of shares of stock Senior Preferred Stock (as defined in the Purchase Agreement referred to below) purchased by Capital Z on exercise the Initial Closing Date (as defined in the Purchase Agreement referred to below) (the "ORIGINAL PREFERRED SHARES") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the Option, or sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any interest in such shares, remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any holder limitations on conversion of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee Recapitalization (as set forth defined in the notice required under subsection Purchase Agreement referred to below)), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (a)(1ii) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for if the Offered Shares andManagement Investor dies, upon such payment retires, is terminated by the Company, or terminates his employment with the Company shall acquire full rightCompany, title subject to the provisions of Section 4 hereof; or (iii) a Change of Control (as defined in the New Option Plan (as such term is defined in the Purchase Agreement referred to below)) has occurred, but only if a Capital Z Realization Event (as defined in the New Option Plan) has also occurred on or prior to such Change of Control, and interest to all PROVIDED, FURTHER, that notwithstanding the foregoing restriction on transfer, the Management Investor may transfer, during the twelve-month period ending on the first anniversary of the Offered Shares.
(4) If, Closing Date and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirtyduring each succeeding twelve-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise month period, and if such transfer has not taken place prior up to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares 25% of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include total number of Underlying Common Shares (whether structured as a transfer of such shares or interests by will or by the applicable laws of descent and distribution Shares, Underlying Shares or a gift of such shares if combination thereof) acquired hereunder (subject to adjustment for splits, combinations, reclassifications and similar events), it being further agreed that the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.Management
Appears in 1 contract
Samples: Management Investment Agreement (Aames Financial Corp/De)
Restrictions on Transfer of Shares. 10.1 Any actions under this Clause shall be subject to Clause 8 (Issuance of New Equity Shares), Clause 11 (Permitted Transfers) and Clause 13 (Tag-Along Right), as applicable:
(i) no Equity Shares nor any interest therein or in respect thereof shall be transferred to, conferred upon or become vested in any person other than the transfer of the whole legal and equitable title to such shares or interest therein or in respect thereof carried out in accordance with this Agreement and the Articles; and
(ii) save as permitted in accordance with Clause 8 (Issuance of New Equity Shares), Clause 11 (Permitted Transfers), and Clause 13 (Tag-Along Right):
(A) no Ordinary Shareholder shall, without the prior written consent of the Original Shareholders and the Preferred Shareholders holding 75% or more of the Preferred Class A Shares issued and outstanding from time to time (where, for the purposes of such calculation, the percentage holding of Preferred Class A Shares held by a Preferred Shareholder shall be aggregated with the percentage holdings of Preferred Class A Shares held at such time by any Affiliate of the Preferred Shareholder, as applicable); and
(B) no Preferred Shareholder shall, directly or indirectly, without the prior written consent of the Original Shareholders, do, or agree to do, any of the following:
(a) There can be no valid transfer (as hereinafter defined) create or allow to subsist any Encumbrance in respect of any shares of stock purchased on exercise of the Option, its Equity Shares or any interest in such shares, by (or in respect of) any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
its Equity Shares other than (1x) Before there can be a valid transfer an Encumbrance on Preferred Class A Shares of any shares or any interest therein, Preferred Shareholder approved by the record holder prior written consent of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee Original Shareholders and the other terms and conditions of Preferred Shareholders or (y) an Encumbrance on Ordinary Shares that are not pledged under the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
Share Pledge Agreement (2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8“Permitted Encumbrance”). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.;
(b) As used create or permit to subsist any trust in this Section 5.8, the term "transfer" means relation to any sale, encumbrance, pledge, gift or Equity Shares other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include than a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.Permitted Encumbrance;
(c) None sell, assign, transfer, contribute in kind or otherwise dispose of or deal with, or grant any option over, any of its Equity Shares or an interest, or a right, in (or in respect of) its Equity Shares;
(d) enter into any agreement or other arrangement in respect of the shares votes or other rights attached to, or any benefits (economic or otherwise) or privileges pertaining to, any of its Equity Shares; or
(e) enter into any derivative arrangement referenced to any of its Equity Shares or the rights attached to, or any benefits (economic or otherwise) or privileges pertaining to, any of its Equity other than a Permitted Encumbrance. Notwithstanding the foregoing and for the avoidance of doubt, Xxxxxx XX shall be permitted to issue and sell to members of its Relevant Party’s Group debt instruments (the “Notes”) referencing and passing on the economic benefit of the Company's stock purchased on exercise segregated compartment of Xxxxxx XX, namely Compartment 17, which compartment’s sole purpose is to hold Xxxxxx SA’s Preferred Class A Shares. The Notes will initially be held by Eleuthera SPC acting for its Burger Delight SP segregated portfolio (“Eleuthera”). The Notes will be freely transferable only between members of Xxxxxx SA’s Relevant Party’s Group (which, for the Option purposes of this paragraph, shall include Eleuthera), provided that neither Xxxxxx X.X. nor Eleuthera will permit a transfer of Notes to an investor that has not been subject to the policies and procedures of Credit Suisse AG designed to ensure compliance with applicable anti-money laundering and other applicable “Know Your Client” policies and procedures.
10.2 Any act, or any other dealing or attempted dealing or disposal of any interest in or in respect of Equity Shares, other than as so permitted shall be transferred on invalid, and shall not be registered by the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Samples: Shareholders’ Agreement (Tfi Tab Gida Yatirimlari A.S.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself his or her heirs. Legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 1 2.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service. Provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Purchase Price.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of (eighteen) 1 8 month s commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Par1icipant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten (10) days nor more than sixty (60) days from the date of the mailing of the notice, and the Par1icipant or hi s or her successor in interest with respect to the Shares shall have no further right s as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer. Shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.2 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions are complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty (60) days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten (10) nor more than sixty (60) days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.2 have been held by the Participant for less than six (6) months, then the Closing Date may be extended by the Company until no more than ten (10) days after such Shares have been held by the Participant for six (6) months. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six (6) months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six (6) months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.2 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.2 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.2 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.3 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.4 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.5 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.6 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.7 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.8 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration plus such additional period of time as may be required to comply with Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules thereto.
12.9 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.10 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (American Well Corp)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein and in a Stockholders' and Voting Agreement dated as of January 6, or any interest in such shares1997, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with as amended August 13, 1999 (hereinafter the following provisions:"Stockholders Agreement").
(1b) Before there can be a valid transfer of any shares or any interest therein, In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered Employee's termination of employment, Disability or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice datedeath, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered shares issued pursuant to this Agreement (including, without limitation, Shares at purchased after termination of employment, Disability or death in accordance with Paragraph 4 hereof). In the purchase price and on event the terms Company does not, upon the termination of employment, Disability or Death of the Employee (as described above), exercise its option pursuant to this Subparagraph 12 (b), the restrictions set forth in subsection (a)(3) the balance of this Section 5.8Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. This The following provisions shall apply to a repurchase under this Subparagraph 12 (b):
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Subparagraph 12(b) shall be exercisable equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination, Disability or death.
(ii) The Company's option to repurchase the Employee's Shares in the event of termination of employment, death or Disability shall be valid for a period of twelve (12) months commencing with the date of such termination, Disability or death.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee's Shares under this Subparagraph 12(b), the Company shall notify the Employee, or in case of death, his or her representative, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company by mailing (by registered or certified mailup to and including the last day of the time period provided for in Subparagraph 12(b)(ii) written notice for exercise of exercise the Company's option to the Offeror prior to the end of said thirty (30) daysrepurchase.
(3iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price at which is to be made (hereinafter the "Closing"). The date specified shall not be less than ten (10) days, but nor more than sixty (60) days, from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from, and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest, and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company may purchase by the Offered Employee or his or her successor in interest.
(c) Upon acquiring any Shares pursuant to the exercise of the Option, the Employee agrees to become a party to the Stockholders Agreement.
(d) In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect:
(i) To establish a segregated account in the amount of the repurchase price, such option account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and/or
(ii) Immediately to take such action as is appropriate to transfer record title of such Shares
(d) (i).
(e) If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock, or other securities of the Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the cash price offered Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
(f) If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Offered Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
(g) The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
(h) The preceding provisions of this Paragraph 12 shall terminate upon the consummation of a public offering of any of the Company's securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the Securities Act, in which offering the aggregate gross proceeds to the Company exceed $10,000,000.
(i) If, in connection with a registration statement filed by the proposed transferee (as set forth in Company pursuant to the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise Securities Act, the Company or its underwriter so requests, the Employee will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such option shall be accompanied by full payment for registration.
(j) The Employee acknowledges and agrees that neither the Offered Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares andbefore, upon such payment at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company shall acquire full right, title and interest to all make a public offering of the Offered Sharesits securities or to be acquired by or merged with or into another firm or entity.
(4k) If, and only if, All certificates representing the option given Shares to be issued to the Employee pursuant to subsection (a)(2) this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this certificate are subject to restrictions set forth in an Incentive Stock Option Agreement with this Company, a copy of this Section 5.8 which Agreement is not exercised, available for inspection at the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares offices of the Company's stock Company or any legal or equitable interest therein; provided, however, that the term will be made available upon request."transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Restrictions on Transfer of Shares. DETAILS OF THE PURCHASE ----------------------------------------------------------- OPTION ------
(a) There can Any Shares which are subject to the Purchase Option shall not be no valid transfer (transferred by the Employee except as hereinafter defined) permitted herein. Until the termination of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest thereinthis Agreement, the record holder of Shares which are subject to the shares to Purchase Option may not be transferred (by the "Offered Shares") shall give written notice (by registered or certified mail) Employee unless and until the transferee agrees, in a form satisfactory to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered to be bound by this Agreement and to sell any transferred Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; herein provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8In the event the Company shall be entitled to elect to exercise the Purchase Option, the term "transfer" means any saleCompany shall be deemed to have made such election unless it shall give to the Employee notice of its non-election to exercise the Purchase Option, encumbrancein whole or in part, pledge, gift or other form of disposition or transfer of shares within ninety (90) days of the Company's stock or any legal or equitable interest therein; provided, however, that date of the term "transfer" does not include a transfer of such shares or interests by will or by event entitling the applicable laws of descent and distribution or a gift of such shares if Company to exercise the donee agrees to be bound by the provisions of this Section 5.8Purchase Option.
(c) None In the event the Company shall be entitled to and shall have determined to elect to exercise the Purchase Option, it shall give to the Employee a written notice specifying a date for the Closing, which date shall be not more than ten (10) business days after the giving of the shares of such notice. The Closing shall take place at the Company's stock purchased on principal offices in New Hampshire, or such other location as the Company may reasonably designate in such notice. If the Company shall be deemed to have elected to exercise the Purchase Option by virtue of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of Subsection (b) above, the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.Closing will take
Appears in 1 contract
Samples: Non Qualified Stock Option and Repurchase Agreement (Ekco Group Inc /De/)
Restrictions on Transfer of Shares. For a period commencing on the Closing Date and ending on the fifth anniversary of the Closing Date, the Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (aeach, a "TRANSFER") There can be no valid any of the Shares (or the Underlying Common Shares), without the prior express written consent of the Company, PROVIDED, HOWEVER, that the foregoing restriction on transfer shall not apply (i) if Capital Z Financial Services Fund II. L.P. ("CAPITAL Z") Beneficially Owns (as hereinafter defineddefined in the Purchase Agreement referred to below) less than (A) fifty percent (50%) of any the number of shares of stock Senior Preferred Stock (as defined in the Purchase Agreement referred to below) purchased by Capital Z on exercise the Initial Closing Date (as defined in the Purchase Agreement referred to below) (the "ORIGINAL PREFERRED SHARES") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the Option, or sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any interest in such shares, remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any holder limitations on conversion of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee Recapitalization (as set forth defined in the notice required under subsection Purchase Agreement referred to below)), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (a)(1ii) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for if the Offered Shares andManagement Investor dies, upon such payment retires, is terminated by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying terminates his employment with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees subject to be bound by the provisions of this Section 5.8.
4 hereof; or (ciii) None a Change of Control (as defined in the shares of New Option Plan (as such term is defined in the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring Purchase Agreement referred to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.below)) has occurred, but only if
Appears in 1 contract
Samples: Management Investment Agreement (Aames Financial Corp/De)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Employee pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Employee except as permitted herein.
12.2 In the event of the Employee’s termination of employment for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of employment of the Employee (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Employee for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of employment provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the $.01.
(ii) The Company’s option to repurchase the Employee’s Shares in the event of termination of employment shall be valid for a period of 18 months commencing with the date of such termination of employment.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Employee’s Shares under this Section 12.2, the Company shall notify the Employee, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Employee shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Employee or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Employee or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Employee or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Employee that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Employee may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Employee shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferEmployee. The date Such notice shall constitute a binding offer by the Employee to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Employee as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Employee by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Employee as to whether such shares or interests by will or offer has been accepted in whole by the Company within 60 days after its receipt of written notice from the Employee. The Company may only accept such offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than 60 days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Employee for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Employee for six months if required under applicable laws accounting rules in effect at the time. The place for such closing shall be at the Company’s principal office. At such closing, the Employee shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of descent Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Employee shall be free to sell all, but not less than all, of the Shares set forth in his or her notice to the designated transferee at the price and distribution or a gift terms designated in the Employee’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Employee to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Employee’s Shares.
(iv) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Employee or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Employee or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Employee to the Company and to treat the Employee and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Employee hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act, in which offering the aggregate gross proceeds to the Company exceed $10,000,000 and in which the price per share of such securities equals or exceeds $5.00 (such price subject to equitable adjustment in the event of any stock split, stock dividend, combination, reorganization, reclassification or other similar event).
12.9 The Employee agrees that in the event the Company proposes to offer for sale to the public any of its equity securities and such Employee is requested by the Company and any underwriter engaged by the Company in connection with such offering to sign an agreement restricting the sale or other transfer of Shares, then it will promptly sign such agreement and will not transfer, whether in privately negotiated transactions or to the public in open market transactions or otherwise, any Shares or other securities of the Company held by him or her during such period as is determined by the Company and the underwriters, not to exceed 180 days following the closing of the offering, plus such additional period of time as may be required to comply with Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules thereto (such period, the “Lock-Up Period”). Such agreement shall be in writing and in form and substance reasonably satisfactory to the Company and such underwriter and pursuant to customary and prevailing terms and conditions. Notwithstanding whether the Employee has signed such an agreement, the Company may impose stop-transfer instructions with respect to the Shares or other securities of the Company subject to the foregoing restrictions imposed until the end of the Lock-Up Period.
12.10 The Employee acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Employee by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Employee pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in an Incentive Stock Option Agreement dated _________, 2007 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Invivo Therapeutics Holdings Corp.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on The Shares acquired by the Participant pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Participant except as permitted herein.
(1b) Before there can be a valid transfer of any shares or any interest therein, In the record holder event of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity Participant’s termination of the proposed transferee, the cash price offered for the Offered Shares service by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after the notice dateCompany or an Affiliate for any reason, the Company shall have the option to purchase all (option, but not less than all) the obligation, to repurchase all or any part of the Offered Shares at issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the purchase price and on event the terms Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12(b), the restrictions set forth in subsection (a)(3) the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such restrictions. The following provisions shall apply to a repurchase under this Section 5.8. This 12(b):
(i) The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12(b) shall be exercisable equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service; provided, however, in the event of a termination by the Company by mailing for “cause” (by registered or certified mail) written notice as defined in the Plan), the per share repurchase price of exercise the Shares to be sold to the Offeror prior Company upon exercise of its option under this Section 12(b) shall be equal to the end of said thirty (30) daysPurchase Price.
(3ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of 12 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12(b), the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12(b)(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price at which is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest. In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may purchase elect (i) to establish a segregated account in the Offered amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (ii) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
(c) Upon acquiring any Shares pursuant to the exercise of such option the Option, the Participant agrees to become a party to any stockholders’ agreement among the Company and all or some of its stockholders (a “Company Stockholders’ Agreement”).
(d) If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of the Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the cash price offered Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
(e) If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Offered Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
(f) The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
(g) The Participant agrees that in the event the Company proposes to offer for sale to the public any of its equity securities and such Participant is requested by the proposed transferee Company and any underwriter engaged by the Company in connection with such offering to sign an agreement restricting the sale or other transfer of Shares, then it will promptly sign such agreement and will not transfer, whether in privately negotiated transactions or to the public in open market transactions or otherwise, any Shares or other securities of the Company held by him or her during such period as is determined by the Company and the underwriters, not to exceed 180 days following the closing of the offering, plus such additional period of time as may be required to comply with Marketplace Rule 2711 of the National Association of Securities Dealers, Inc. or similar rules thereto (as set forth in such period, the notice required under subsection (a)(1) of this Section 5.8“Lock-Up Period”). The Company's notice of exercise of such option Such agreement shall be accompanied by full payment for in writing and in form and substance reasonably satisfactory to the Offered Company and such underwriter and pursuant to customary and prevailing terms and conditions. Notwithstanding whether the Participant has signed such an agreement, the Company may impose stop-transfer instructions with respect to the Shares andor other securities of the Company subject to the foregoing restrictions until the end of the Lock-Up Period.
(h) The Participant acknowledges and agrees that neither the Company, upon such payment its stockholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company shall acquire full right, title and interest to all make a public offering of the Offered Sharesits securities or to be acquired by or merged with or into another firm or entity.
(4i) If, and only if, All certificates representing the option given Shares to be issued to the Participant pursuant to subsection (a)(2) this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated , 200 with this Company, a copy of this Section 5.8 which Agreement is not exercisedavailable for inspection at the offices of the Company or will be made available upon request.” In addition, so long as a Company Stockholders’ Agreement is in effect, all certificates representing the transfer proposed in Shares to be issued to the notice given Participant pursuant to subsection (a)(1) this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this certificate are subject to restrictions set forth in a Stockholders’ Agreement dated , 200 with this Company, a copy of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before which Agreement is available for inspection at the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares offices of the Company's stock Company or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8made available upon request.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.”
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Telx Group, Inc.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1i) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares"') shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2ii) For a period of thirty (30) calendar days after the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase price and on the terms set forth in subsection (a)(3) of this Section 5.85.10. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3iii) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the lower of (a) the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1a)(i) of this Section 5.8)5.10) or (b) the greater of the purchase price of the shares pursuant to Section 2.2 or the fair market value of the shares of stock on the notice date, determined in accordance with Section 1.18 of the Plan. The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4iv) If, and only if, the option given pursuant to subsection (a)(2a)(ii) of this Section 5.8 5.10 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1a)(i) of this Section 5.8 5.10 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.85.10.
(b) As used in this Section 5.85.10, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the transferee or donee agrees to be bound by the provisions of this Section 5.85.10.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 5.10 have been complied compiled with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 5.10 and to the repurchase option provided for in Section 5.85.9.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Comps Com Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the Option, or any interest in such shares, Option granted hereby shall not be transferred by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:Participant except as permitted herein.
(1) Before there can 12.2 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.2 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.2 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.2 shall not apply to transfers expressly permitted under Section 7 hereof; provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.2 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.3 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.4 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its common stock, or otherwise distribute securities of the Company to the holders of its common stock, the number of shares of stock purchased on exercise or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.5 If the outstanding shares of common stock of the Option Company shall bear an appropriate legend referring be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of common stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.6 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.7 The provisions of Sections 12.1 and 12.2 shall terminate upon the consummation of a public offering of any of the Company’s securities pursuant to a registration statement filed with the Securities and Exchange Commission pursuant to the 1933 Act, in which offering the aggregate gross proceeds to the Company exceed $40,000,000.
12.8 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.9 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.10 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated , 20 with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Neogenix Oncology Inc)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant’s termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of employment, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service; provided, however, in the event of a termination by the Company for “cause” (as defined in the Plan), the per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to $.01.
(ii) The Company’s option to repurchase the Participant’s Shares in the event of termination of service shall be valid for a period of 18 months commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant’s Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company’s option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the “Closing”). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase (“Closing Date”) which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months. The place for such closing shall be at the Company’s principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant’s notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.8.
12 so that such transferee (cand all subsequent transferees) None shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant’s Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, “Permitted Transferees”); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respectsrespects as if delivery of such Shares had been made as required by this Agreement. The certificates Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock evidencing dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock purchased on exercise or other securities of the Option shall bear an appropriate legend referring Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company’s rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company’s rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer restrictions imposed any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the effective date of the registration of the Shares pursuant to the Securities Exchange Act of 1934.
12.9 If, in connection with a registration statement filed by the Company pursuant to the 1933 Act, the Company or its underwriter so requests, the Participant will agree not to sell any Shares for a period not to exceed 180 days following the effectiveness of such registration.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company or affecting the value of the Shares before, at the time of, or following a termination of the employment of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: “The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated [grant date] with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request.”
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Amedica Corp)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on 12.1 The Shares acquired by the Participant pursuant to the exercise of the OptionOption granted hereby shall not be transferred by the Participant except as permitted herein.
12.2 In the event of the Participant's termination of service for any reason, the Company shall have the option, but not the obligation, to repurchase all or any interest part of the Shares issued pursuant to this Agreement (including, without limitation, Shares purchased after termination of service, Disability or death in accordance with Section 4 hereof). In the event the Company does not, upon the termination of service of the Participant (as described above), exercise its option pursuant to this Section 12.2, the restrictions set forth in the balance of this Agreement shall not thereby lapse, and the Participant for himself or herself, his or her heirs, legatees, executors, administrators and other successors in interest, agrees that the Shares shall remain subject to such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the restrictions. The following provisionsprovisions shall apply to a repurchase under this Section 12.2:
(1i) Before there can The per share repurchase price of the Shares to be sold to the Company upon exercise of its option under this Section 12.2 shall be equal to the Fair Market Value of each such Share determined in accordance with the Plan as of the date of termination of service.
(ii) The Company's option to repurchase the Participant's Shares in the event of termination of service shall be valid for a period of three years commencing with the date of such termination of service.
(iii) In the event the Company shall be entitled to and shall elect to exercise its option to repurchase the Participant's Shares under this Section 12.2, the Company shall notify the Participant, or in case of death, his or her Survivor, in writing of its intent to repurchase the Shares. Such written notice may be mailed by the Company up to and including the last day of the time period provided for in Section 12.2(ii) for exercise of the Company's option to repurchase.
(iv) The written notice to the Participant shall specify the address at, and the time and date on, which payment of the repurchase price is to be made (the "Closing"). The date specified shall not be less than ten days nor more than 60 days from the date of the mailing of the notice, and the Participant or his or her successor in interest with respect to the Shares shall have no further rights as the owner thereof from and after the date specified in the notice. At the Closing, the repurchase price shall be delivered to the Participant or his or her successor in interest and the Shares being purchased, duly endorsed for transfer, shall, to the extent that they are not then in the possession of the Company, be delivered to the Company by the Participant or his or her successor in interest.
12.3 It shall be a valid condition precedent to the validity of any sale or other transfer of any shares Shares by the Participant that the following restrictions be complied with (except as hereinafter otherwise provided):
(i) No Shares owned by the Participant may be sold, pledged or otherwise transferred (including by gift or devise) to any interest thereinperson or entity, voluntarily, or by operation of law, except in accordance with the terms and conditions hereinafter set forth.
(ii) Before selling or otherwise transferring all or part of the Shares, the record holder of the shares to be transferred (the "Offered Shares") Participant shall give written notice (by registered or certified mail) of such intention to the Company. Such , which notice shall specify include the identity name of the proposed transferee, the cash proposed purchase price offered for per share, the Offered Shares terms of payment of such purchase price and all other matters relating to such sale or transfer and shall be accompanied by a copy of the binding written agreement of the proposed transferee and to purchase the other terms and conditions Shares of the proposed transferParticipant. The date Such notice shall constitute a binding offer by the Participant to sell to the Company such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder number of the Offered Shares shall then held by the Participant as are proposed to be hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days after sold in the notice date, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the purchase monetary price and per share designated in such notice, payable on the terms set forth in subsection (a)(3) of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise offered to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares Participant by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "Company shall not be required to meet any non-monetary terms of the proposed transfer" does not include a transfer , including, without limitation, delivery of other securities in exchange for the Shares proposed to be sold). The Company shall give written notice to the Participant as to whether such shares or interests by will or offer has been accepted in whole by the applicable laws Company within sixty days after its receipt of descent written notice from the Participant. The Company may only accept such offer in whole and distribution may not accept such offer in part. Such acceptance notice shall fix a time, location and date for the closing on such purchase ("Closing Date") which shall not be less than ten nor more than sixty days after the giving of the acceptance notice, provided, however, if any of the Shares to be sold pursuant to this Section 12.3 have been held by the Participant for less than six months, then the Closing Date may be extended by the Company until no more than ten days after such Shares have been held by the Participant for six months. The place for such closing shall be at the Company's principal office. At such closing, the Participant shall accept payment as set forth herein and shall deliver to the Company in exchange therefor certificates for the number of Shares stated in the notice accompanied by duly executed instruments of transfer.
(iii) If the Company shall fail to accept any such offer, the Participant shall be free to sell all, but not less than all, of the Shares set forth in his or a gift her notice to the designated transferee at the price and terms designated in the Participant's notice, provided that (i) such sale is consummated within six months after the giving of such shares if notice by the donee Participant to the Company as aforesaid, and (ii) the transferee first agrees in writing to be bound by the provisions of this Section 5.812 so that such transferee (and all subsequent transferees) shall thereafter only be permitted to sell or transfer the Shares in accordance with the terms hereof. After the expiration of such six months, the provisions of this Section 12.3 shall again apply with respect to any proposed voluntary transfer of the Participant's Shares.
(iv) The restrictions on transfer contained in this Section 12.3 shall not apply to (a) transfers by the Participant to his or her spouse or children or to a trust for the benefit of his or her spouse or children, (b) transfers by the Participant to his or her guardian or conservator, and (c) None or transfers by the Participant, in the event of his or her death, to his or her executor(s) or administrator(s) or to trustee(s) under his or her will (collectively, "Permitted Transferees"); provided however, that in any such event the Shares so transferred in the hands of each such Permitted Transferee shall remain subject to this Agreement, and each such Permitted Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.
(v) The provisions of this Section 12.3 may be waived by the Company. Any such waiver may be unconditional or based upon such conditions as the Company may impose.
12.4 In the event that the Participant or his or her successor in interest fails to deliver the Shares to be repurchased by the Company under this Agreement, the Company may elect (a) to establish a segregated account in the amount of the repurchase price, such account to be turned over to the Participant or his or her successor in interest upon delivery of such Shares, and (b) immediately to take such action as is appropriate to transfer record title of such Shares from the Participant to the Company and to treat the Participant and such Shares in all respects as if delivery of such Shares had been made as required by this Agreement. The Participant hereby irrevocably grants the Company a power of attorney which shall be coupled with an interest for the purpose of effectuating the preceding sentence.
12.5 If the Company shall pay a stock dividend or declare a stock split on or with respect to any of its Common Stock, or otherwise distribute securities of the Company to the holders of its Common Stock, the number of shares of stock or other securities of Company issued with respect to the shares then subject to the restrictions contained in this Agreement shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement. If the Company shall distribute to its stockholders shares of stock of another corporation, the shares of stock of such other corporation, distributed with respect to the Shares then subject to the restrictions contained in this Agreement, shall be added to the Shares subject to the Company's rights to repurchase pursuant to this Agreement.
12.6 If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares or combined into a smaller number of shares, or in the event of a reclassification of the outstanding shares of Common Stock of the Company, or if the Company shall be a party to a merger, consolidation or capital reorganization, there shall be substituted for the Shares then subject to the restrictions contained in this Agreement such amount and kind of securities as are issued in such subdivision, combination, reclassification, merger, consolidation or capital reorganization in respect of the Shares subject immediately prior thereto to the Company's rights to repurchase pursuant to this Agreement.
12.7 The Company shall not be required to transfer any Shares on its books which shall have been sold, assigned or otherwise transferred in violation of this Agreement, or to treat as owner of such Shares, or to accord the right to vote as such owner or to pay dividends to, any person or organization to which any such Shares shall have been so sold, assigned or otherwise transferred, in violation of this Agreement.
12.8 The provisions of Sections 12.1, 12.2 and 12.3 shall terminate upon the consummation of a public offering of any of the Company's stock purchased on exercise securities pursuant to a registration statement filed with the Securities and Exchange Commission.
12.9 The Participant agrees that in the event that the Company effects an initial public offering of the Option shall Common Stock of the Company registered under the Securities Act, the Shares may not be transferred on sold, offered for sale or otherwise disposed of, directly or indirectly, without the prior written consent of the managing underwriter(s) of the offering, for such period of time after the execution of an underwriting agreement in connection with the such offering that all of the Company's books then directors and executive officers agree to be similarly bound.
12.10 The Participant acknowledges and agrees that neither the Company, its shareholders nor shall its directors and officers, has any duty or obligation to disclose to the Participant any material information regarding the business of the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise affecting the value of the Option shall bear an appropriate legend referring Shares before, at the time of, or following a termination of service of the Participant by the Company, including, without limitation, any information concerning plans for the Company to make a public offering of its securities or to be acquired by or merged with or into another firm or entity.
12.11 All certificates representing the Shares to be issued to the transfer restrictions imposed Participant pursuant to this Agreement shall have endorsed thereon a legend substantially as follows: "The shares represented by this Section 5.8 and certificate are subject to restrictions set forth in a Non-Qualified Stock Option Agreement dated ________, 200__ with this Company, a copy of which Agreement is available for inspection at the repurchase option provided for in Section 5.8offices of the Company or will be made available upon request."
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Archemix Corp.)
Restrictions on Transfer of Shares. (a) There can be no valid transfer (as hereinafter defined) of any shares of stock purchased on exercise of the Option, or any interest in such shares, by any holder of such shares or interests unless such transfer is solely for cash consideration and is made in compliance with the following provisions:
(1) Before there can be a valid transfer of any shares or any interest therein, the record holder of the shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the proposed transfer. The date such notice is mailed shall be hereinafter referred to as the "notice date" and the record holder of the Offered Shares shall be hereinafter referred to as the "Offeror."
(2) For a period commencing on the Closing Date and ending on the fifth anniversary of thirty (30) calendar days after the notice dateClosing Date, the Company shall have the option to purchase all Management Investor may not sell, transfer, assign, pledge, hypothecate or otherwise dispose of (but not less than alleach, a "transfer") any of the Offered Shares at (or the purchase price and on Underlying Common Shares), without the terms set forth in subsection (a)(3) prior express written consent of this Section 5.8. This option shall be exercisable by the Company by mailing (by registered or certified mail) written notice of exercise to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercised, the transfer proposed in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the foregoing restriction on transfer shall not apply (i) if Capital Z Financial Services Fund II. L.P. ("Capital Z") Beneficially Owns (as defined in the Purchase Agreement referred to below) less than (A) fifty percent (50%) of the number of shares of Senior Preferred Stock (as defined in the Purchase Agreement referred to below) purchased by Capital Z on the Initial Closing Date (as defined in the Purchase Agreement referred to below) (the "Original Preferred Shares") or (B) if any Original Preferred Shares shall thereafter have been converted into Common Stock, fifty percent (50%) of the sum of (x) the aggregate number of shares Common Stock owned by Capital Z as a result of such conversion(s) plus (y) the aggregate number of shares Common Stock into which any remaining Original Preferred Shares owned by Capital Z may be converted (determined without regard to any limitations on conversion of such shares prior to the Recapitalization (as defined in the Purchase Agreement referred to below)), in each case subject to adjustment for splits, combinations, reclassifications and similar events; (ii) if the Management Investor dies, retires, is terminated by the Company, or terminates his employment with the Company, subject to the provisions of Section 4 hereof; or (iii) a Change of Control (as defined in the New Option Plan (as such term "is defined in the Purchase Agreement referred to below)) has occurred, but only if a Capital Z Realization Event (as defined in the New Option Plan) has also occurred on or prior to such Change of Control, and provided, further, that notwithstanding the foregoing restriction on transfer" does not include , the Management Investor may transfer, during the twelve-month period ending on the first anniversary of the Closing Date and during each succeeding twelve-month period, up to 25% of the total number of Underlying Common Shares (whether structured as a transfer of such shares or interests by will or by the applicable laws of descent and distribution Shares, Underlying Shares or a gift of such shares if combination thereof) acquired hereunder (subject to adjustment for splits, combinations, reclassifications and similar events), it being further agreed that the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of Management Investor may request the Company's stock purchased on exercise Board of Directors to allow the Management Investor to transfer Shares (or Underlying Common Shares) in excess of the Option shall be transferred on 25% limitation described in this proviso if extraordinary liquidity needs have arisen with respect to the Company's books nor shall Management Investor, and, in such event, the Company recognize any (through its Board of Directors) will consider such transfer request in good faith and will not unreasonably withhold its consent to a waiver of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respectslimitation. The certificates "Purchase Agreement" referred to herein shall mean the Preferred Stock Purchase Agreement by and between the Company and Capital Z, dated as of stock evidencing shares of stock purchased on exercise of December 23, 1998, as the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8same may be amended or modified.
Appears in 1 contract
Samples: Management Investment Agreement (Aames Financial Corp/De)
Restrictions on Transfer of Shares. (a) There can be no valid transfer NO TRANSFERS UNLESS AUTHORIZED AND IN COMPLIANCE WITH THIS AGREEMENT.
(as hereinafter definedi) of any shares of stock purchased on exercise None of the OptionShares now owed or hereafter acquired by the Grantee shall be sold, assigned, transferred, pledged, hypothecated, given away or in any interest in such sharesother manner disposed of or encumbered, whether voluntarily or by any holder operation of such shares or interests law, unless such transfer is solely for cash consideration and is made in compliance with all foreign, federal and state securities laws (including, without limitation, the following provisions:Act), and such disposition is in accordance with the terms and conditions of this SECTION 4. In connection with any transfer of Shares, the Company may require an opinion of counsel to the transferor, satisfactory to the Company, that such transfer is in compliance with all foreign, federal and state securities laws (including without limitation, the Act). No Restricted Shares may be transferred, sold, assigned or given away, except as set forth in SECTIONS 4(b) OR 4(c) hereof. The Grantee agrees to give the Company prompt notice of any transfer of Shares to a Permitted Transferee as contemplated under SECTION 4(b) hereof. Any attempted disposition of Shares not in accordance with the terms and conditions of this Agreement shall be null and void, and the Company shall not reflect on its records any change in record ownership of any Shares pursuant to any such disposition, shall otherwise refuse to recognize any such disposition and shall not in any way give effect to any such disposition of any Shares.
(1ii) Before there can be a valid Prior to making any transfer of any shares or any interest thereinVested Shares (other than to a Permitted Transferee for which notice shall be given as set forth in SECTION 4(A)(I) hereof), the record holder Grantee shall deliver written notice (the "Transfer Notice") to the Company. The Transfer Notice shall disclose in reasonable detail the identity of the prospective transferees, the number of shares to be transferred (the "Offered Shares") shall give written notice (by registered or certified mail) to the Company. Such notice shall specify the identity of the proposed transferee, the cash price offered for the Offered Shares by the proposed transferee and the other terms and conditions of the such proposed transfer. The date such notice is mailed By giving the Transfer Notice, the Grantee shall be hereinafter referred deemed to as have granted the "notice date" and Company an option to purchase the record holder Offered Shares. The Company may purchase all or any portion of the Offered Shares shall be hereinafter referred upon the same terms and conditions as those set forth in the Transfer Notice by delivering written notice of such election to as the "Offeror."
(2) For a period of thirty (30) calendar Grantee within 20 business days after the notice date, Transfer Notice has been given to the Company shall have (the option "Election Period"). If the Company has not elected to purchase or otherwise acquire all (but not less than all) of the Offered Shares prior to the expiration of the Election Period, the Grantee may transfer such Vested Shares at the purchase a price and on terms no more favorable to the terms set forth transferees thereof than specified in subsection the Transfer Notice during the 30-day period immediately following the expiration of the Election Period (a)(3) the "Transfer Period"). Any Offered Shares not so transferred within the Transfer Period shall be subject to the provisions of this Section 5.8SECTION 4(A) upon any subsequent transfer. This option shall be exercisable by If the Company by mailing (by registered or certified mail) written notice of exercise has elected to the Offeror prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase the any Offered Shares pursuant to the exercise of such option shall be the cash price offered for the Offered Shares by the proposed transferee (as set forth in the notice required under subsection (a)(1) of this Section 5.8). The Company's notice of exercise of such option shall be accompanied by full payment for the Offered Shares and, upon such payment by the Company, the Company shall acquire full right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to subsection (a)(2) of this Section 5.8 is not exercisedhereunder, the transfer proposed of such Offered Shares shall be consummated as soon as practical after the deliver of the election notice to the Executive, but in the notice given pursuant to subsection (a)(1) of this Section 5.8 may take place; provided, however, that such transfer must, in all respects, be exactly as proposed in said notice except that such transfer may not take place either before the tenth (10th) calendar day any event within 15 days after the expiration of said thirty-day option exercise period or after the ninetieth (90th) calendar day after the expiration of said thirty-day option exercise period, and if such transfer has not taken place prior to said ninetieth (90th) day, such transfer may not take place without once again complying with subsection (a) of this Section 5.8Election Period.
(b) As used in this Section 5.8, the term "transfer" means any sale, encumbrance, pledge, gift or other form of disposition or transfer of shares of the Company's stock or any legal or equitable interest therein; provided, however, that the term "transfer" does not include a transfer of such shares or interests by will or by the applicable laws of descent and distribution or a gift of such shares if the donee agrees to be bound by the provisions of this Section 5.8.
(c) None of the shares of the Company's stock purchased on exercise of the Option shall be transferred on the Company's books nor shall the Company recognize any such transfer of any such shares or any interest therein unless and until all applicable provisions of this Section 5.8 have been complied with in all respects. The certificates of stock evidencing shares of stock purchased on exercise of the Option shall bear an appropriate legend referring to the transfer restrictions imposed by this Section 5.8 and to the repurchase option provided for in Section 5.8.
Appears in 1 contract
Samples: Restricted Stock Agreement (Servicesoft Technologies Inc)
