Contract
Exhibit 10.21
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION
TO A PERSON WHO IS NOT A U.S. PERSON (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH SECURITIES HAVE NOT
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT AND, AS SUCH,
THEY MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED, HYPOTHECATED OR
EXERCISED (AS APPLICABLE) IN THE ABSENCE OF SUCH REGISTRATION IN THE UNITED STATES OR TO OR FOR THE
ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER
THE SECURITIES ACT, PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OR PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT. THE HOLDER OF THE SUCH SECURITIES AGREES
NOT TO ENGAGE IN HEDGING TRANSACTIONS WITH REGARD TO THE SECURITIES UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT.
MagnaChip Semiconductor LLC has granted to the Participant named in the Notice of Grant of
Unit Option (the “Grant Notice”) to which this Option Agreement (the “Option Agreement”) is
attached an option (the “Option”) to purchase certain Units upon the terms and conditions set forth
in the Grant Notice and this Option Agreement. The Option has been granted pursuant to and shall
in all respects be subject to the terms and conditions of the MagnaChip Semiconductor LLC 2009
Common Unit Plan (the “Plan”), as amended to the Date of Grant, the provisions of which are
incorporated herein by reference. By signing the Grant Notice, the Participant: (a) acknowledges
receipt of, and represents that the Participant has read and is familiar with, the Grant Notice,
this Option Agreement, the Plan and the Operating Agreement, (b) accepts the Option subject to all
of the terms and conditions of the Grant Notice, Option Agreement, the Plan and the Operating
Agreement, and (c) agrees to accept as binding, conclusive and final all decisions or
interpretations of the Board upon any questions arising under such documents.
1. Definitions and Construction.
1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings
assigned to such terms in the Grant Notice or the Plan.
1.2 Construction. Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of this Option Agreement. Except when
otherwise indicated by the context, the singular shall
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include the plural and the plural shall include the singular. Use of the term “or” is not
intended to be exclusive, unless the context clearly requires otherwise.
2. Certain Conditions of the Option.
2.1 Compliance with Local Law. The Participant agrees that the Participant will not acquire
Units pursuant to the Option or transfer, assign, sell or otherwise deal with such Units except in
compliance with Local Law.
2.2 Employment Conditions. In accepting the Option, the Participant acknowledges that:
(a) Any notice period mandated under Local Law shall not be treated as Service for the purpose
of determining the vesting of the Option; and the Participant’s right to exercise the Option after
termination of Service, if any, will be measured by the date of termination of the Participant’s
active Service and will not be extended by any notice period mandated under Local Law. Subject to
the foregoing and the provisions of the Plan, the Company, in its sole discretion, shall determine
whether the Participant’s Service has terminated and the effective date of such termination.
(b) The Plan is established voluntarily by the Company. It is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any time, unless otherwise
provided in the Plan and this Option Agreement.
(c) The grant of the Option is voluntary and occasional and does not create any contractual or
other right to receive future grants of Options, or benefits in lieu of Options, even if Options
have been granted repeatedly in the past.
(d) All decisions with respect to future Option grants, if any, will be at the sole discretion
of the Company.
(e) The Participant’s participation in the Plan shall not create a right to further Service
with any Participating Company and shall not interfere with the ability of any Participating
Company to terminate the Participant’s Service at any time, with or without cause.
(f) The Participant is voluntarily participating in the Plan.
(g) The Option is an extraordinary item that does not constitute compensation of any kind for
Service of any kind rendered to any Participating Company, and which is outside the scope of the
Participant’s employment contract, if any.
(h) The Option is not part of normal or expected compensation or salary for any purpose,
including, but not limited to, calculating any severance, resignation, termination, redundancy,
end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar
payments.
(i) In the event that the Participant is not an employee of the Company, the Option grant will
not be interpreted to form an employment contract or relationship with the Company; and furthermore
the Option grant will not be interpreted to form an employment contract with any other
Participating Company.
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(j) The future value of the underlying Units is unknown and cannot be predicted with
certainty. If the underlying Units do not increase in value, the Option will have no value. If
the Participant exercises the Option and obtains Units, the value of those Units acquired upon
exercise may increase or decrease in value, even below the Exercise Price.
(k) No claim or entitlement to compensation or damages arises from termination of the Option
or diminution in value of the Option or Units purchased through exercise of the Option resulting
from termination of the Participant’s Service (for any reason whether or not in breach of Local
Law) and the Participant irrevocably releases the Company and each other Participating Company from
any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a
court of competent jurisdiction to have arisen then, by signing this Option Agreement, the
Participant shall be deemed irrevocably to have waived the Participant’s entitlement to pursue such
a claim.
2.3 Data Privacy Consent.
(a) The Participant hereby explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of the Participant’s personal data as described in this
document by and among the members of the Participating Company Group for the exclusive purpose of
implementing, administering and managing the Participant’s participation in the Plan.
(b) The Participant understands that the Participating Company Group holds certain personal
information about the Participant, including, but not limited to, the Participant’s name, home
address and telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any securities or directorships held in the Company,
details of all Options or any other entitlement to securities awarded, canceled, exercised, vested,
unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering
and managing the Plan (“Data”). The Participant understands that Data may be transferred to any
third parties assisting in the implementation, administration and management of the Plan, that
these recipients may be located in the Participant’s country or elsewhere, and that the recipient’s
country may have different data privacy laws and protections than the Participant’s country. The
Participant understands that he or she may request a list with the names and addresses of any
potential recipients of the Data by contacting the Participant’s local human resources
representative. The Participant authorizes the recipients to receive, possess, use, retain and
transfer the Data, in electronic or other form, for the purposes of implementing, administering and
managing the Participant’s participation in the Plan, including any requisite transfer of such Data
as may be required to a broker or other third party with whom the Participant may elect to deposit
any securities acquired upon exercise of the Option. The Participant understands that Data will be
held only as long as is necessary to implement, administer and manage the Participant’s
participation in the Plan. The Participant understands that he or she may, at any time, view Data,
request additional information about the storage and processing of Data, require any necessary
amendments to Data or refuse or withdraw the consents herein, in any case without cost, by
contacting in writing the Participant’s local human resources representative. The Participant
understands, however, that refusing or withdrawing the Participant’s consent may affect the
Participant’s ability to participate in the Plan. For more information on the consequences of the
Participant’s refusal to consent or withdrawal of consent, the Participant understands that he or
she may contact the Participant’s local human resources representative.
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2.4 Acknowledgements, Representations and Warranties of the Participant.
(a) The Participant acknowledges, understands and agrees that:
(i) Neither the Option nor any Units that may be acquired by exercise of the Option (together,
the “Securities”) have been registered under the United States Securities Act of 1933, as amended
(the “Securities Act”), and, unless so registered, may not be offered or sold in the United States
or, directly or indirectly, to U.S. Persons (as defined in subsection (c) below), except in
accordance with the provisions of Regulation S of the Securities Act (“Regulation S”), pursuant to
an effective registration statement under the Securities Act, or pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities Act;
(ii) The Participant will only offer, transfer or sell the Securities in accordance with the
provisions of Regulation S, pursuant to an effective registration statement under the Securities
Act, or pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities;
(iii) The Participant will not engage in hedging transactions with regard to the Securities
unless in compliance with the Securities Act;
(iv) The Company will refuse to register any transfer of the Securities not made in accordance
with the provisions of Regulation S, pursuant to an effective registration statement under the
Securities Act or pursuant to an available exemption from the registration requirements of the
Securities Act; and
(v) The Company and others will rely upon the truth and accuracy of the acknowledgements,
representations and agreements contained in this Option Agreement, and agrees that if any of such
acknowledgements, representations and agreements are no longer accurate or have been breached, the
Participant shall promptly notify the Company.
(b) The Participant represents and warrants to the Company that:
(i) The Participant is not a U.S. Person and the Participant is not acquiring the Securities
for the account or benefit of, directly or indirectly, any U.S. Person; and
(ii) The Participant is outside the United States when receiving and executing this Option
Agreement and is acquiring the Securities for investment only and not with a view to resale or
distribution and, in particular, it has no intention to distribution either directly or indirectly
any of the Securities in the United States or to U.S. Persons.
(c) For purposes of this Option Agreement, “U.S. Person” means: (i) any natural person
resident in the United States; (ii) any partnership or corporation organized or incorporated under
the laws of the United States; (iii) any estate of which any executor or administrator is a U.S.
Person; (iv) any trust of which any trustee is a U.S. Person; (v) any agency or branch of a foreign
entity located in the United States; (vi) any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or
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other fiduciary for the benefit of or account of a U.S. Person; (vii) any discretionary
account or similar account (other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the United States; and (viii) any
partnership or corporation if (A) organized or incorporated under the laws of any non-U.S.
jurisdiction and (B) formed by a U.S. Person principally for the purpose of investing in securities
not registered under the Securities Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined below) who are not natural persons, estates or trusts.
3. Administration.
All questions of interpretation concerning the Grant Notice, this Option Agreement and the
Plan, the Operating Agreement, and any other form of agreement or other document employed by the
Board or the Company in the administration of the Plan or the Option shall be determined by the
Board. All such determinations by the Board shall be final, binding and conclusive upon all
persons having an interest in the Option, unless fraudulent or made in bad faith. Any and all
actions, decisions and determinations taken or made by the Board in the exercise of its discretion
pursuant to the Plan or the Option or other agreement thereunder (other than determining questions
of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon
all persons having an interest in the Option. Any Officer shall have the authority to act on
behalf of the Company with respect to any matter, right, obligation, or election which is the
responsibility of or which is allocated to the Company herein, provided the Officer has actual
authority with respect to such matter, right, obligation, or election.
4. Exercise of the Option.
4.1 Right to Exercise. Except as otherwise provided herein, the Option shall be exercisable
on and after the Initial Vesting Date and prior to the termination of the Option (as provided in
Section 6) in an amount not to exceed the number of Vested Units less the number of Units
previously acquired upon exercise of the Option, subject to the Company’s repurchase rights set
forth in Section 11 and Section 12. In no event shall the Option be exercisable for more Units
than the Number of Option Units, as adjusted pursuant to Section 9.
4.2 Method of Exercise. Exercise of the Option shall be by means of electronic or written
notice (the “Exercise Notice”) in a form authorized by the Company. An electronic Exercise Notice
must be digitally signed or authenticated by the Participant in such manner as required by the
notice and transmitted to the Company or an authorized representative of the Company (including a
third-party administrator designated by the Company). In the event that the Participant is not
authorized or is unable to provide an electronic Exercise Notice, the Option shall be exercised by
a written Exercise Notice addressed to the Company, which shall be signed by the Participant and
delivered in person, by certified or registered mail, return receipt requested, by confirmed
facsimile transmission, or by such other means as the Company may permit, to the Company, or an
authorized representative of the Company (including a third-party administrator designated by the
Company). Each Exercise Notice, whether electronic or written, must state the Participant’s
election to exercise the Option, the number of whole Units for which the Option is being exercised
and such other representations and agreements as to the Participant’s investment intent with
respect to such Units as may be required pursuant to the provisions of this Option Agreement.
Further, each Exercise Notice must be received by the Company prior to the termination of the
Option as set forth in Section 6 and must be accompanied by (a) full
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payment of the aggregate Exercise Price for the number of Units being purchased and (b) such
executed documents, if any, as may be required pursuant to Section 4.3. The Option shall be deemed
to be exercised upon receipt by the Company of such electronic or written Exercise Notice, the
aggregate Exercise Price, and, if required by the Company, such additional executed documents.
4.3 Issuance of Units Subject to Operating Agreement. If required by the Board, the
Participant shall not be entitled to acquire any Units pursuant to this Option and to be admitted
as a member of the Company thereby unless and until the Participant has executed and delivered to
the Company a written undertaking in a form acceptable to the Board to be bound by the terms and
conditions of the Operating Agreement and/or any lock-up or other documents the Board reasonably
determines to be necessary or appropriate in connection with the issuance of such Units.
4.4 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise provided below, payment of the
aggregate Exercise Price for the number of Units for which the Option is being exercised shall be
made (i) in cash, by check or in cash equivalent, (ii) if permitted by the Board and subject to the
limitations contained in Section 4.4(b), by means of (1) a Unit Tender Exercise, (2) a Cashless
Exercise, or (3) a Net-Exercise; or (iii) by any combination of the foregoing.
(b) Limitations on Forms of Consideration. The Board reserves, at any and all times, the
right, in the Board’s sole and absolute discretion, to establish, decline to approve or terminate
any program or procedure providing for payment of the Exercise Price through any of the means
described below, including with respect to the Participant notwithstanding that such program or
procedures may be available to others.
(i) Unit Tender Exercise. A “Unit Tender Exercise” means the delivery of a properly executed
Exercise Notice accompanied by (1) the Participant’s tender to the Company, or attestation to the
ownership, in a form acceptable to the Board of whole Units having a Fair Market Value that does
not exceed the aggregate Exercise Price for the Units with respect to which the Option is
exercised, and (2) the Participant’s payment to the Company in cash of the remaining balance of
such aggregate Exercise Price not satisfied by such Units’ Fair Market Value. A Unit Tender
Exercise shall not be permitted if it would constitute a violation of the provisions of any law,
regulation or agreement restricting the redemption of the Units. If required by the Board, the
Option may not be exercised by tender to the Company, or attestation to the ownership, of Units
unless such Units either have been owned by the Participant for a period of time required by the
Board (and not used for another option exercise by attestation during such period) or were not
acquired, directly or indirectly, from the Company.
(ii) Cashless Exercise. A Cashless Exercise shall be permitted only following a conversion of
Options into options for shares of stock of a corporation having shares of the same class which
have become publicly traded in an established securities market. A “Cashless Exercise” means the
delivery of a properly executed Exercise Notice together with irrevocable instructions to a broker
in a form acceptable to the Board providing for the assignment to the Company of the proceeds of a
sale or loan with respect to some or all of the shares being acquired upon the exercise of the
Option in an amount not less than the aggregate Exercise Price for such shares (including,
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without limitation, through an exercise complying with the provisions of Regulation T as
promulgated from time to time by the Board of Governors of the Federal Reserve System).
(iii) Net-Exercise. A “Net-Exercise” means the delivery of a properly executed Exercise
Notice electing a procedure pursuant to which (1) the Company will reduce the number of Units
otherwise issuable to the Participant upon the exercise of the Option by the largest whole number
of Units having a Fair Market Value that does not exceed the aggregate Exercise Price for the Units
with respect to which the Option is exercised, and (2) the Participant shall pay to the Company in
cash the remaining balance of such aggregate Exercise Price not satisfied by such reduction in the
number of whole Units to be issued. Following a Net-Exercise, the number of Units remaining
subject to the Option, if any, shall be reduced by the sum of (1) the net number of Units issued to
the Participant upon such exercise, and (2) the number of Units deducted by the Company for payment
of the aggregate Exercise Price.
4.5 Tax Withholding.
(a) In General. Regardless of any action taken by the Company or any other Participating
Company with respect to any or all income tax, social insurance, payroll tax, payment on account or
other tax-related withholding (the “Tax Obligations”), the Participant acknowledges that the
ultimate liability for all Tax Obligations legally due by the Participant is and remains the
Participant’s responsibility and that the Company (a) makes no representations or undertakings
regarding the treatment of any Tax Obligations in connection with any aspect of the Option,
including the grant, vesting or exercise of the Option, the subsequent sale of Units acquired
pursuant to such exercise, or the receipt of any dividends and (b) does not commit to structure the
terms of the grant or any other aspect of the Option to reduce or eliminate the Participant’s
liability for Tax Obligations. At the time of exercise of the Option, the Participant shall pay or
make adequate arrangements satisfactory to the Company to satisfy all withholding obligations of
the Company and any other Participating Company. In this regard, at the time the Option is
exercised, in whole or in part, or at any time thereafter as requested by the Company or any other
Participating Company, the Participant hereby authorizes withholding of all applicable Tax
Obligations from payroll and any other amounts payable to the Participant, and otherwise agrees to
make adequate provision for withholding of all applicable Tax Obligations, if any, by each
Participating Company which arise in connection with the Option. Alternatively, or in addition, if
permissible under applicable law, including Local Law, the Company or any other Participating
Company may sell or arrange for the sale of securities acquired by the Participant to satisfy the
Tax Obligations. Finally, the Participant shall pay to the Company or any other Participating
Company any amount of the Tax Obligations that any such company may be required to withhold as a
result of the Participant’s participation in the Plan that cannot be satisfied by the means
previously described. The Company shall have no obligation to process the exercise of the Option
or to deliver Units until the Tax Obligations as described in this Section have been satisfied by
the Participant.
(b) Withholding in Units. If permissible under applicable law, including Local Law, the
Company shall have the right, but not the obligation, to require the Participant to satisfy all or
any portion of a Participating Company’s tax withholding obligations upon exercise of the Option by
deducting from the Units otherwise issuable to the Participant upon such exercise a number of whole
Units having a Fair Market Value, as determined by the Board as of the date of exercise, not in
excess of the amount of such tax withholding obligations determined by the applicable minimum
statutory withholding rates.
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Notwithstanding the foregoing, this Section 4.5(b) shall not apply to the Option to purchase
Units or shares of stock of a corporation either of which is not publicly traded in an established
securities market.
4.6 Beneficial Ownership of Units; Certificate Registration. The Participant hereby
authorizes the Company, in its sole discretion, to deposit for the benefit of the Participant with
any broker with which the Participant has an account relationship of which the Company has notice
any or all securities acquired by the Participant pursuant to the exercise of the Option. Except
as provided by the preceding sentence, Units as to which the Option is exercised shall be
registered in book entry form with the Company or its transfer agent or shall be issued in
certificate form, in either case registered in the name of the Participant, or, if applicable, in
the names of the heirs of the Participant.
4.7 Restrictions on Grant of the Option and Issuance of Units. The grant of the Option and
the issuance of Units upon exercise of the Option shall be subject to compliance with all
applicable requirements of United States federal or state law or Local Law with respect to such
securities. The Option may not be exercised if the issuance of Units upon exercise would
constitute a violation of any applicable federal, state or foreign securities laws, including Local
Law, or other law or regulations or the requirements of any stock exchange or market system upon
which the Units may then be listed. In addition, the Option may not be exercised unless (i) a
registration statement under the Securities Act shall at the time of exercise of the Option be in
effect with respect to the Units issuable upon exercise of the Option or (ii) in the opinion of
legal counsel to the Company, the Units issuable upon exercise of the Option may be issued in
accordance with the terms of an applicable exemption from the registration requirements of the
Securities Act. Furthermore, except as otherwise determined by the Board, in its discretion, the
Option may not be exercised if the number of record holders of Units immediately following such
exercise and issuance of Units would exceed ninety percent (90%) of the number of such record
holders that would require the Company to register the Units pursuant to Section 12(g) of the
Exchange Act, in which case the Board can, among other things, toll the stated exercise period or
unilaterally cancel the Option in exchange for a cash payment per share equal to the Fair Market
Value on the attempted date of exercise over the Exercise Price. THE PARTICIPANT IS CAUTIONED THAT
THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. ACCORDINGLY, THE
PARTICIPANT MAY NOT BE ABLE TO EXERCISE THE OPTION WHEN DESIRED EVEN THOUGH THE OPTION IS VESTED.
The inability of the Company to obtain from any regulatory body having jurisdiction the authority,
if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of
any Units subject to the Option shall relieve the Company of any liability in respect of the
failure to issue or sell such Units as to which such requisite authority shall not have been
obtained. As a condition to the exercise of the Option, the Company may require the Participant to
satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any
applicable law or regulation and to make any representation or warranty with respect thereto as may
be requested by the Company.
4.8 Fractional Units. The Company shall not be required to issue fractional Units upon the
exercise of the Option.
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5. Nontransferability of the Option.
During the lifetime of the Participant, the Option shall be exercisable only by the
Participant or the Participant’s guardian or legal representative. The Option shall not be subject
in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge,
encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary,
except transfer by will or by the laws of descent and distribution. Following the death of the
Participant, the Option, to the extent provided in Section 7, may be exercised by the Participant’s
legal representative or by any person empowered to do so under the deceased Participant’s will or
under the then applicable laws of descent and distribution.
6. Termination of the Option.
The Option shall terminate and may no longer be exercised after the first to occur of (a) the
close of business on the Option Expiration Date, (b) the close of business on the last date for
exercising the Option following termination of the Participant’s Service as described in Section 7,
or (c) a Change in Control to the extent provided in Section 8.
7. Effect of Termination of Service.
7.1 Option Exercisability. The Option shall terminate immediately upon the Participant’s
termination of Service to the extent that it is then unvested and shall be exercisable after the
Participant’s termination of Service to the extent it is then vested only during the applicable
time period as determined below and thereafter shall terminate.
(a) Disability. If the Participant’s Service terminates because of the Disability of the
Participant, the Option, to the extent unexercised and exercisable for Vested Units on the date on
which the Participant’s Service terminated, may be exercised by the Participant (or the
Participant’s guardian or legal representative) at any time prior to the expiration of twelve (12)
months after the date on which the Participant’s Service terminated, but in any event no later than
the Option Expiration Date.
(b) Death. If the Participant’s Service terminates because of the death of the Participant,
the Option, to the extent unexercised and exercisable for Vested Units on the date on which the
Participant’s Service terminated, may be exercised by the Participant’s legal representative or
other person who acquired the right to exercise the Option by reason of the Participant’s death at
any time prior to the expiration of twelve (12) months after the date on which the Participant’s
Service terminated, but in any event no later than the Option Expiration Date. The Participant’s
Service shall be deemed to have terminated on account of death if the Participant dies within three
(3) months after the Participant’s termination of Service.
(c) Termination for Cause. Notwithstanding any other provision of this Option Agreement, if
the Participant’s Service is terminated for Cause, the Option shall terminate in its entirety and
cease to be exercisable immediately upon such termination of Service.
(d) Other Termination of Service. If the Participant’s Service terminates for any reason,
except Disability, death or Cause, the Option, to the extent unexercised and exercisable for Vested
Units by the Participant on the date on which the Participant’s Service terminated, may be
exercised by the Participant at any time prior to the
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expiration of three (3) months after the date on which the Participant’s Service terminated,
but in any event no later than the Option Expiration Date.
7.2 Extension if Exercise Prevented by Law. Notwithstanding the foregoing other than
termination of the Participant’s Service for Cause, if the exercise of the Option within the
applicable time periods set forth in Section 7.1 is prevented by the provisions of Section 4.7, the
Option shall remain exercisable until the later of (a) thirty (30) days after the date such
exercise first would no longer be prevented by such provisions or (b) the end of the applicable
time period under Section 7.1, but in any event no later than the Option Expiration Date.
8. Effect of Change in Control.
In the event of a Change in Control, and provided that the Participant’s Service has not
terminated prior to such date, the Option shall be immediately exercisable and vested in full
immediately prior to the consummation of the Change in Control. Except to the extent that the
Board determines to cash out the Option in accordance with Section 9.3 of the Plan, the surviving,
continuing, successor, or purchasing corporation or other business entity or parent thereof, as the
case may be (the “Acquiror”), may, without the consent of the Participant, assume or continue in
full force and effect the Company’s rights and obligations under all or any portion of the Option
or substitute for all or any portion of the Option a substantially equivalent option for the
Acquiror’s securities. For purposes of this Section, the Option or any portion thereof shall be
deemed assumed if, following the Change in Control, the Option confers the right to receive,
subject to the terms and conditions of the Plan and this Option Agreement, for each Unit subject to
such portion of the Option immediately prior to the Change in Control, the consideration (whether
units, stock, cash, other securities or property or a combination thereof) to which a holder of a
Unit on the effective date of the Change in Control was entitled; provided, however, that if such
consideration is not solely common equity of the Acquiror, the Board may, with the consent of the
Acquiror, provide for the consideration to be received upon the exercise of the Option for each
Unit to consist solely of common equity of the Acquiror equal in Fair Market Value to the per Unit
consideration received by holders of Units pursuant to the Change in Control. If any portion of
such consideration may be received by holders of Units pursuant to the Change in Control on a
contingent or delayed basis, the Board may, in its discretion, determine such Fair Market Value per
Unit as of the time of the Change in Control on the basis of the Board’s good faith estimate of the
present value of the probable future payment of such consideration. The Option shall terminate and
cease to be outstanding effective as of the time of consummation of the Change in Control to the
extent that the Option is neither assumed or continued by the Acquiror in connection with the
Change in Control nor exercised as of the time of the Change in Control. Notwithstanding the
foregoing, Units acquired upon exercise of the Option prior to the Change in Control and any
consideration received pursuant to the Change in Control with respect to such Units shall continue
to be subject to all applicable provisions of this Option Agreement except as otherwise provided
herein.
9. Adjustments for Changes in Capital Structure.
Subject to any required action by the members of the Company and the requirements of Sections
409A of the Code to the extent applicable, in the event of any change in the Units effected without
receipt of consideration by the Company, whether through merger, consolidation, reorganization,
reincorporation, recapitalization, reclassification, Unit dividend, split, reverse split, split-up,
split-off, spin-off, combination of
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Units, exchange of Units, Solvent Reorganization (as defined by the Operating Agreement) or
similar change in the capital structure of the Company, adjustments shall be made as the Board
determines appropriate in order to prevent dilution or enlargement of the Participant’s rights
under the Option, including, without limitation, (i) adjusting the number and/or kind of Units
subject to the Option, (ii) adjusting the Exercise Price, (iii) adjusting the Vesting Conditions;
(iv) providing for substitute awards, accelerating exercisability and/or vesting, effecting the
lapse of restrictions and the termination of the Option, and/or providing for a period of time to
exercise the Option prior to the applicable event; and/or (v) cancelling the Option; provided,
however, that in the case of any “equity restructuring” (within the meaning of the Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 123 (revised 2004), the
Board shall make an equitable or proportionate adjustment to the Option to reflect such equity
restructuring. For purposes of the foregoing, conversion of any convertible securities of the
Company shall not be treated as “effected without receipt of consideration by the Company.” Any
fractional Unit resulting from an adjustment pursuant to this Section shall be rounded down to the
nearest whole number, and the Exercise Price shall be rounded up to the nearest whole cent. Such
adjustments shall be determined by the Board, and its determination shall be final, binding and
conclusive.
10. Rights as a Member, Manager, Employee or Consultant.
The Participant shall have no rights as a member with respect to any Units covered by the
Option until the date of the issuance of the Units for which the Option has been exercised (as
evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company). No adjustment shall be made for dividends, distributions or other rights
for which the record date is prior to the date the Units are issued, except as provided in Section
9. If the Participant is an Employee, the Participant understands and acknowledges that, except as
otherwise provided in a separate, written employment agreement between a Participating Company and
the Participant, the Participant’s employment is “at will” and is for no specified term. Nothing
in this Option Agreement shall confer upon the Participant any right to continue in the Service of
a Participating Company or interfere in any way with any right of the Participating Company Group
to terminate the Participant’s Service as a Manager, an Employee or Consultant, as the case may be,
at any time.
11. Right of First Refusal.
11.1 Grant of Right of First Refusal. Except as provided in Section 11.7 and Section 16
below, in the event the Participant, the Participant’s legal representative, or other holder of
Units acquired upon exercise of the Option proposes to sell, exchange, transfer, pledge, or
otherwise dispose of any Vested Units (the “Transfer Units”) to any person or entity, including,
without limitation, any securities holder of a Participating Company, the Company shall have the
right to repurchase the Transfer Units under the terms and subject to the conditions set forth in
this Section 11 (the “Right of First Refusal”).
11.2 Notice of Proposed Transfer. Prior to any proposed transfer of the Transfer Units, the
Participant shall deliver written notice (the “Transfer Notice”) to the Company describing fully
the proposed transfer, including the number of Transfer Units, the name and address of the proposed
transferee (the “Proposed Transferee”) and, if the transfer is voluntary, the proposed transfer
price, and containing such information necessary to show the bona fide nature of the proposed
transfer. In the event of a bona fide gift or involuntary transfer, the proposed transfer price
shall be deemed to be the Fair Market Value of the
11
Transfer Units, as determined by the Board in good faith. If the Participant proposes to
transfer any Transfer Units to more than one Proposed Transferee, the Participant shall provide a
separate Transfer Notice for the proposed transfer to each Proposed Transferee. The Transfer
Notice shall be signed by both the Participant and the Proposed Transferee and must constitute a
binding commitment of the Participant and the Proposed Transferee for the transfer of the Transfer
Units to the Proposed Transferee subject only to the Right of First Refusal.
11.3 Bona Fide Transfer. If the Company determines that the information provided by the
Participant in the Transfer Notice is insufficient to establish the bona fide nature of a proposed
voluntary transfer, the Company shall give the Participant written notice of the Participant’s
failure to comply with the procedure described in this Section 11, and the Participant shall have
no right to transfer the Transfer Units without first complying with the procedure described in
this Section 11. The Participant shall not be permitted to transfer the Transfer Units if the
proposed transfer is not bona fide.
11.4 Exercise of Right of First Refusal. If the Company determines the proposed transfer to
be bona fide, the Company shall have the right to purchase all, but not less than all, of the
Transfer Units (except as the Company and the Participant otherwise agree) at the purchase price
and on the terms set forth in the Transfer Notice by delivery to the Participant of a notice of
exercise of the Right of First Refusal within thirty (30) days after the date the Transfer Notice
is delivered to the Company. The Company’s exercise or failure to exercise the Right of First
Refusal with respect to any proposed transfer described in a Transfer Notice shall not affect the
Company’s right to exercise the Right of First Refusal with respect to any proposed transfer
described in any other Transfer Notice, whether or not such other Transfer Notice is issued by the
Participant or issued by a person other than the Participant with respect to a proposed transfer to
the same Proposed Transferee. If the Company exercises the Right of First Refusal, the Company and
the Participant shall thereupon consummate the sale of the Transfer Units to the Company on the
terms set forth in the Transfer Notice within sixty (60) days after the date the Transfer Notice is
delivered to the Company (unless a longer period is offered by the Proposed Transferee); provided,
however, that in the event the Transfer Notice provides for the payment for the Transfer Units
other than in cash, the Company shall have the option of paying for the Transfer Units by the
present value cash equivalent of the consideration described in the Transfer Notice as reasonably
determined by the Company. For purposes of the foregoing, cancellation of any indebtedness of the
Participant to any Participating Company shall be treated as payment to the Participant in cash to
the extent of the unpaid principal and any accrued interest canceled. Notwithstanding anything
contained in this Section to the contrary, the period during which the Company may exercise the
Right of First Refusal and consummate the purchase of the Transfer Units from the Participant shall
terminate no sooner than the later of (a) the date eight (8) months following the date on which the
Participant acquired the Transfer Units upon exercise of the Option or (b) the date thirty (30)
days after the date that exercise of the Right of First Refusal and payment for the Transfer Units
would no longer be prevented by the provisions of any law, regulation or agreement that would
prohibit the redemption by the Company of the Transfer Units.
11.5 Failure to Exercise Right of First Refusal. If the Company fails to exercise the Right
of First Refusal in full (or to such lesser extent as the Company and the Participant otherwise
agree) within the period specified in Section 11.4 above, the Participant may conclude a transfer
to the Proposed Transferee of the Transfer Units on the terms and
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conditions described in the Transfer Notice, provided such transfer occurs not later than
ninety (90) days following delivery to the Company of the Transfer Notice or, if applicable,
following the end of the period described in the last sentence of Section 11.4. The Company shall
have the right to demand further assurances from the Participant and the Proposed Transferee (in a
form satisfactory to the Company) that the transfer of the Transfer Units was actually carried out
on the terms and conditions described in the Transfer Notice. No Transfer Units shall be
transferred on the books of the Company until the Company has received such assurances, if so
demanded, and has approved the proposed transfer as bona fide. Any proposed transfer on terms and
conditions different from those described in the Transfer Notice, as well as any subsequent
proposed transfer by the Participant, shall again be subject to the Right of First Refusal and
shall require compliance by the Participant with the procedure described in this Section 11.
11.6 Transferees of Transfer Units. All transferees of the Transfer Units or any interest
therein, other than the Company, shall be required as a condition of such transfer to agree in
writing (in a form satisfactory to the Company) that such transferee shall receive and hold such
Transfer Units or interest therein subject to all of the terms and conditions of this Option
Agreement, including this Section 11 providing for the Right of First Refusal with respect to any
subsequent transfer. Any sale or transfer of any Units acquired upon exercise of the Option shall
be void unless the provisions of this Section 11 are met.
11.7 Transfers Not Subject to Right of First Refusal. The Right of First Refusal shall not
apply to any transfer or exchange of the Units acquired upon exercise of the Option if such
transfer or exchange is in connection with an Ownership Change Event. If the consideration
received pursuant to such transfer or exchange consists of securities of a Participating Company,
such consideration shall remain subject to the Right of First Refusal unless the provisions of
Section 11.9 below result in a termination of the Right of First Refusal.
11.8 Assignment of Right of First Refusal. The Company shall have the right to assign the
Right of First Refusal at any time, whether or not there has been an attempted transfer, to one or
more persons as may be selected by the Company.
11.9 Early Termination of Right of First Refusal. The other provisions of this Option
Agreement notwithstanding, the Right of First Refusal shall terminate and be of no further force
and effect upon the existence of a public market for the class of securities subject to the Right
of First Refusal. A “public market” shall be deemed to exist if (i) such securities are listed on
a national securities exchange (as that term is used in the Exchange Act) or (ii) such securities
are traded on the over-the-counter market and prices therefor are published daily on business days
in a recognized financial journal.
12. Vested Unit Repurchase Option.
12.1 Grant of Vested Unit Repurchase Option. Except as provided in Section 12.4 below, in the
event of the occurrence of any Repurchase Event, as defined below, the Company shall have the right
to repurchase the Units acquired by the Participant pursuant to the Option (the “Repurchase Units”)
under the terms and subject to the conditions set forth in this Section (the “Vested Unit
Repurchase Option”). Each of the following events shall constitute a “Repurchase Event”:
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(a) Termination of the Participant’s Service for any reason or no reason, with or without
cause, including death or Disability. The Repurchase Period, as defined below, shall commence on
the date of termination of the Participant’s Service.
(b) The Participant, the Participant’s legal representative, or other holder of Units acquired
upon exercise of the Option attempts to sell, exchange, transfer, pledge, or otherwise dispose of
any Repurchase Units without complying with the provisions of Section 11. The Repurchase Period,
as defined below, shall commence on the date the Company receives actual notice of such attempted
sale, exchange, transfer, pledge or other disposition.
(c) The receivership, bankruptcy or other creditor’s proceeding regarding the Participant or
the taking of any of the Participant’s Units by legal process, such as a levy of execution. The
Repurchase Period, as defined below, shall commence on the date the Company receives actual notice
of the commencement of pendency of the receivership, bankruptcy or other creditor’s proceeding or
the date of such taking, as the case may be. The Fair Market Value of the Repurchase Units shall
be determined as of the last day of the month preceding the month in which the proceeding involved
commenced or the taking occurred.
12.2 Exercise of Vested Unit Repurchase Option. The Company may exercise the Vested Unit
Repurchase Option by written notice to the Participant, the Participant’s legal representative, or
other holder of the Repurchase Units, as the case may be, during the Repurchase Period. The
“Repurchase Period” shall be the period commencing at the time set forth in Section 12.1 above and
ending on the later of (a) the date ninety (90) days after the commencement of the Repurchase
Period or (b) the date nine (9) months after the Option is last exercised; provided, however, that
if the redemption by the Company of the Repurchase Units during any portion of the Repurchase
Period would violate the provisions of any law, regulation or agreement, the Vested Unit Repurchase
Option shall remain exercisable until the later of (the “Extended Repurchase Period”) (a) thirty
(30) days after the date such exercise would no longer be prevented by such provisions or (b) the
end of the Repurchase Period. If the Company fails to give notice during the Repurchase Period or
the Extended Repurchase period, as applicable, the Vested Unit Repurchase Option shall terminate
(unless the Company and the Participant have extended the time for the exercise of the Vested Unit
Repurchase Option) unless and until there is a subsequent Repurchase Event. Notwithstanding a
termination of the Vested Unit Repurchase Option, the remaining provisions of this Option Agreement
shall remain in full force and effect, including, without limitation, the Right of First Refusal
set forth in Section 11. If there is a subsequent Repurchase Event, the Vested Unit Repurchase
Option shall again become exercisable as provided in this Section 12. The Vested Unit Repurchase
Option must be exercised, if at all, for all of the Repurchase Units, except as the Company and the
Participant otherwise agree.
12.3 Payment for Repurchase Units. The repurchase price per Unit being repurchased by the
Company pursuant to the Vested Unit Repurchase Option shall be an amount equal to the Fair Market
Value of the Units determined as of the date of the Repurchase Event (except as otherwise provided
in Section 12.1(c)) by the Board in good faith; provided, however, that if the Repurchase Event is
the termination of the Participant’s Service for Cause, the repurchase price per Unit shall be the
lesser of such Fair Market Value or the Exercise Price paid by the Participant to acquire such
Unit. Payment by the Company to the Participant shall be made in cash on or before the last day of
the Repurchase Period. For purposes of the foregoing, cancellation of any indebtedness of the
Participant to any
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Participating Company shall be treated as payment to the Participant in cash to the extent of
the unpaid principal and any accrued interest canceled.
12.4 Transfers Not Subject to Vested Unit Repurchase Option. The Vested Unit Repurchase
Option shall not apply to any transfer or exchange of Units acquired upon exercise of the Option if
such transfer or exchange is in connection with an Ownership Change Event. If the consideration
received pursuant to such transfer or exchange consists of securities of a Participating Company,
such consideration will remain subject to the Vested Unit Repurchase Option unless the provisions
of Section 12.6 result in a termination of the Vested Unit Repurchase Option.
12.5 Assignment of Vested Unit Repurchase Option. The Company shall have the right to assign
the Vested Unit Repurchase Option at any time, whether or not such option is then exercisable, to
one or more persons as may be selected by the Company.
12.6 Early Termination of Vested Unit Repurchase Option. The other provisions of this Option
Agreement notwithstanding, the Vested Unit Repurchase Option shall terminate and be of no further
force and effect upon the existence of a public market, as defined in Section 11.9, for the class
of securities subject to the Vested Unit Repurchase Option.
13. Distributions Subject to Option Agreement.
If, from time to time, there is any Unit dividend, split or other change, as described in
Section 9, in the character or amount of any of the outstanding securities of the entity the
securities of which is subject to the provisions of this Option Agreement, then in such event any
and all new, substituted or additional securities to which the Participant is entitled by reason of
the Participant’s ownership of the Units acquired upon exercise of the Option shall be immediately
subject to the Right of First Refusal and the Vested Unit Repurchase Option with the same force and
effect as the Units subject to the Right of First Refusal and the Vested Unit Repurchase Option
immediately before such event.
14. Legends.
If the Units are at any time evidenced by certificates, the Company may at any time place
legends referencing the Right of First Refusal, the Vested Unit Repurchase Option and any
applicable federal, state or foreign securities law, including Local Law, restrictions on all
certificates representing the securities subject to the provisions of this Option Agreement. The
Participant shall, at the request of the Company, promptly present to the Company any and all
certificates representing securities acquired pursuant to the Option in the possession of the
Participant in order to carry out the provisions of this Section. Unless otherwise specified by
the Company, legends placed on such certificates may include, but shall not be limited to, the
following:
14.1 “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS AND, AS SUCH, THEY MAY
NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION IN THE UNITED
15
STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT. THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES NOT TO ENGAGE IN HEDGING
TRANSACTIONS WITH REGARD TO THE SECURITIES UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
14.2 “THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND REPURCHASE OPTIONS IN FAVOR OF THE CORPORATION OR ITS ASSIGNEE SET FORTH IN AN
AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED HOLDER, OR SUCH HOLDER’ S PREDECESSOR
IN INTEREST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THIS CORPORATION.”
15. Lock-Up Agreement.
The Participant hereby agrees that in the event of any underwritten public offering of
securities, including an initial public offering of securities, made by the Company pursuant to an
effective registration statement filed under the Securities Act, the Participant shall not offer,
sell, contract to sell, pledge, hypothecate, grant any option to purchase or make any short sale
of, or otherwise dispose of any securities of the Company or any rights to acquire securities of
the Company for such period of time from and after the effective date of such registration
statement as may be established by the underwriter for such public offering; provided, however,
that such period of time shall not exceed one hundred eighty (180) days from the effective date of
the registration statement to be filed in connection with such public offering; provided, further,
however, that such one hundred eighty (180) day period may be extended for an additional period,
not to exceed twenty (20) days, upon the request of the Company or the underwriter to accommodate
regulatory restrictions on (i) the publication or other distribution of research reports and (ii)
analyst recommendations and opinions, including but not limited to, the restrictions contained in
NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto).
The foregoing limitation shall not apply to securities registered in the public offering under the
Securities Act. The Participant hereby agrees to enter into any agreement reasonably required by
the underwriters to implement the foregoing within a reasonable timeframe if so requested by the
Company.
16. Restrictions on Transfer of Units.
No Units acquired upon exercise of the Option may be sold, exchanged, transferred (including,
without limitation, any transfer to a nominee or agent of the Participant), assigned, pledged,
hypothecated or otherwise disposed of, including by operation of law in any manner which violates
any of the provisions of this Option Agreement or the Operating Agreement, and any such attempted
disposition shall be void. The Company shall not be required (a) to transfer on its books any
Units which will have been transferred in violation of any of the provisions set forth in this
Option Agreement or the Operating Agreement or (b) to treat as owner of such Units or to accord the
right to vote as such owner or to pay dividends to any transferee to whom such Units will have been
so transferred.
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17. Miscellaneous Provisions.
17.1 Termination or Amendment. The Board may terminate or amend the Plan or the Option at any
time; provided, however, that except as provided in Section 8 in connection with a Change in
Control, no such termination or amendment may have a materially adverse effect on the Option or any
unexercised portion hereof without the consent of the Participant unless such termination or
amendment is necessary to comply with any applicable law or government regulation. No amendment or
addition to this Option Agreement shall be effective unless in writing.
17.2 Further Instruments. The parties hereto agree to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the intent of this Option
Agreement.
17.3 Binding Effect. This Option Agreement shall inure to the benefit of the successors and
assigns of the Company and, subject to the restrictions on transfer set forth herein, be binding
upon the Participant and the Participant’s heirs, executors, administrators, successors and
assigns.
17.4 Delivery of Documents and Notices. Any document relating to participation in the Plan,
or any notice required or permitted hereunder shall be given in writing and shall be deemed
effectively given (except to the extent that this Option Agreement provides for effectiveness only
upon actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail
address, if any, provided for the Participant by a Participating Company, or upon deposit in the
U.S. Post Office or foreign postal service, by registered or certified mail, or with a nationally
recognized overnight courier service, with postage and fees prepaid, addressed to the other party
at the address of such party set forth in the Grant Notice or at such other address as such party
may designate in writing from time to time to the other party.
(a) Description of Electronic Delivery. The Plan documents, which may include but do not
necessarily include: the Plan, the Grant Notice, this Option Agreement, the Operating Agreement and
any reports of the Company provided generally to the Company’s Unit holders, may be delivered to
the Participant electronically. In addition, if permitted by the Company, the Participant may
deliver electronically the Grant Notice and Exercise Notice called for by Section 4.2 to the
Company or to such third party involved in administering the Plan as the Company may designate from
time to time. Such means of electronic delivery may include but do not necessarily include the
delivery of a link to a Company intranet or the Internet site of a third party involved in
administering the Plan, the delivery of the document via e-mail or such other means of electronic
delivery specified by the Company.
(b) Consent to Electronic Delivery. The Participant acknowledges that the Participant has
read Section 17.4(a) of this Option Agreement and consents to the electronic delivery of the Plan
documents and, if permitted by the Company, the delivery of the Grant Notice and Exercise Notice,
as described in Section 17.4(a). The Participant acknowledges that he or she may receive from the
Company a paper copy of any documents delivered electronically at no cost to the Participant by
contacting the Company by telephone or in writing. The Participant further acknowledges that the
Participant will be provided with a paper copy of any documents if the attempted electronic
delivery of such documents fails. Similarly, the Participant understands that the Participant must
provide the
17
Company or any designated third party administrator with a paper copy of any documents if the
attempted electronic delivery of such documents fails. The Participant may revoke his or her
consent to the electronic delivery of documents described in Section 17.4(a) or may change the
electronic mail address to which such documents are to be delivered (if Participant has provided an
electronic mail address) at any time by notifying the Company of such revoked consent or revised
e-mail address by telephone, postal service or electronic mail. Finally, the Participant
understands that he or she is not required to consent to electronic delivery of documents described
in Section 17.4(a).
17.5 Integrated Agreement. The Grant Notice, this Option Agreement and the Plan, together
with the Operating Agreement and any employment, service or other agreement with the Participant
and a Participating Company referring to the Option, shall constitute the entire understanding and
agreement of the Participant and the Participating Company Group with respect to the subject matter
contained herein or therein and supersede any prior agreements, understandings, restrictions,
representations, or warranties among the Participant and the Participating Company Group with
respect to such subject matter. To the extent contemplated herein or therein, the provisions of
the Grant Notice, the Option Agreement, the Plan and the Operating Agreement shall survive any
exercise of the Option and shall remain in full force and effect.
17.6 Applicable Law. This Option Agreement shall be governed by the laws of the State of
California as such laws are applied to agreements between California residents entered into and to
be performed entirely within the State of California. For purposes of litigating any dispute that
arises directly or indirectly from the relationship of the parties as evidenced by this Option
Agreement, the parties hereby submit to and consent to the jurisdiction of the State of California
and agree that such litigation shall be conducted only in the courts of the County of Santa Clara,
California, or the federal courts of the United States for the Northern District of California, and
no other courts, where this Option Agreement is made and/or performed.
17.7 Counterparts. The Grant Notice may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
18
Participant:
Date:
UNIT OPTION EXERCISE NOTICE
MagnaChip Semiconductor LLC
Attention: General Counsel
Attention: General Counsel
Ladies and Gentlemen:
1. Option. I was granted an option (the “Option”) to purchase Common Units (the
“Units”) of MagnaChip Semiconductor LLC (the “Company”) pursuant to the Company’s 2009 Common Unit
Plan (the “Plan”), my Notice of Grant of Unit Option (the “Grant Notice”) and my Option Agreement
(the “Option Agreement”) as follows:
Date of Grant: | ||||||
Number of Option Units: | ||||||
Exercise Price per Unit: | US$ |
2. Exercise of Option. I hereby elect to exercise the Option to purchase the
following number of Units, all of which are Vested Units, in accordance with the Grant Notice and
the Option Agreement:
Total Units Purchased: | ||||||
Total Exercise Price (Total Units X Price per Unit) | US$ |
3. Payments. I enclose payment in full of the total exercise price for the Units in
the following form(s), as authorized by my Option Agreement:
Cash: | US$ |
|||||
Check: | US$ |
|||||
Unit Tender Exercise: | Contact Plan Administrator | |||||
Cashless Exercise: | Contact Plan Administrator | |||||
Net Exercise: | Contact Plan Administrator |
4. Tax Withholding. I authorize payroll withholding and otherwise will make adequate
provision for the federal, state, local and foreign tax withholding obligations of the Company, if
any, in connection with the Option. I enclose payment in full of my withholding taxes, if any, as
follows:
(Contact Plan Administrator for amount of tax due.)
Check: | US$ |
|||||
Unit Withholding: | Contact Plan Administrator |
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5. Participant Information.
My address is: | ||||
My Tax Identification Number is: | ||||
6. Binding Effect. I agree that the Units are being acquired in accordance with and
subject to the terms, provisions and conditions of the Grant Notice, the Option Agreement,
including the Right of First Refusal and Vested Unit Repurchase Option set forth therein, the Plan
and the Operating Agreement, to all of which I hereby expressly assent. This Agreement shall inure
to the benefit of and be binding upon my heirs, executors, administrators, successors and assigns.
7. Joinder Agreement. I have executed and am hereby delivering to the Company along
with this Exercise Notice a Joinder Agreement, pursuant to which I agree to become a party to, to
by bound by, and to comply with all of the provisions of the Operating Agreement.
8. Transfer. I understand, acknowledge and agree that:
(a) The Units have not been, and there is no assurance that the Units will ever be, registered
under the Securities Act, and in issuing the Units to me, the Company is relying upon the “safe
harbor” provided by Regulation S under the Securities Act;
(b) It is a condition to the availability of the Regulation S “safe harbor” that the Units not
be offered or sold in the United States or to a U.S. person until the expiration of a period of one
year (or six months if the Company is a “reporting issuer” (as defined in Regulation S)) following
the purchase of the Units (the “Distribution Compliance Period”);
(c) Until the expiration of the Distribution Compliance Period:
(i) I have not and will not solicit offers to buy, offer for sale or sell any of the Units or
any beneficial interest therein in the United States or to or for the account of a U.S. Person;
(ii) Notwithstanding the foregoing, prior the expiration of the Distribution Compliance
Period, the Units may be offered and sold by me only if: (A) the Units are offered and sold
pursuant to an effective registration statement or pursuant to an exemption from the registration
requirements of the Securities Act if the offer or sale is within the United States or for the
account of a U.S. person (as such terms are defined in Regulation S); or (B) the offer and sale is
outside the United States and to other than a U.S. person; and
(iii) The foregoing restrictions are binding upon subsequent transferees of the Units, except
for transferees pursuant to an effective registration statement.
I agree that after the Distribution Compliance Period, the Units may be offered or sold within the
United States or to or for the account of a U.S. person only pursuant to applicable securities
laws.
(d) I have not engaged, nor am I aware that any party has engaged, and I will not engage or
cause any third party to engage, in any directed selling efforts (as such term is defined in
Regulation S) in the United States with respect to the Units;
(e) I am not a “distributor” (as defined in Regulation S) or a “dealer” (as defined in the
Securities Act); and
(f) I acknowledge that the Company shall make a notation in its stock books regarding the
restrictions on transfer set forth in this Section 8 and shall transfer Units on the books of the
Company only to the extent consistent herewith. In particular, I acknowledge that the Company
shall refuse to register any transfer of the Units not made in accordance with the provisions of
Regulation S, pursuant to registration under the Securities Act or pursuant to an available
exemption from registration.
(g) I will notify any purchaser of the Units of the restrictions relating to the Units noted
herewith.
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(h) I have the full power and authority to deliver these representations in connection with my
purchase of the Units.
(i) I acknowledge that the Company is entitled to rely on the truth and accuracy of the
foregoing representations and warranties and that the foregoing representations and warranties will
survive my admission as a member of the Company.
(j) I acknowledge that these representations and warranties may be translated into one or more
languages other than English. In case of any inconsistency between the English version of these
representations and warranties and a version in any other language, the English version shall
prevail. In the event I execute and deliver a non-English version of these representations and
warranties, such execution and delivery will also be deemed to be execution and delivery of the
English version of these representations and warranties.
(k) I represent and warrant that the above acknowledgements, representations and agreements
are true and accurate as of the date hereof. I also agree to inform the Company should any of the
information contained in these representations and warranties cease to be true and/or accurate. I
acknowledge that in the event I do not inform the Company of any change to the information
contained in these representations and warranties, the Company and its respective professional
advisers will be entitled to continue to rely on the truth and accuracy of the foregoing
representations and warranties until and including the date I purchase the Units.
I understand that I am purchasing the Units pursuant to the terms of the Plan, the Grant
Notice, my Option Agreement and the Operating Agreement, copies of which I have received and
carefully read and understand.
Very truly yours, |
||||
(Signature) | ||||
Receipt of the above is hereby acknowledged.
MagnaChip Semiconductor LLC |
||||
By: | ||||
Title: | ||||
Dated: | ||||
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