KIOR, INC. STOCK PURCHASE AGREEMENT
Exhibit 10.5
KIOR, INC.
AGREEMENT made this _____ day of ___________________, _____ by and between the Corporation and
_____________________, Optionee under the Corporation’s Amended and Restated 2007 Stock
Option/Stock Issuance Plan (the “Optionee”).
All capitalized terms in this Agreement shall have the meaning assigned to them in this
Agreement or in the attached Appendix.
A. EXERCISE OF OPTION
1. Exercise. Optionee hereby purchases _______ shares of Class A Common Stock (the
“Purchased Shares”) pursuant to that certain option (the “Option”) granted Optionee
on ____________________, _______ (the “Grant Date”) to purchase up to _______________
shares of Class A Common Stock (the “Option Shares”) under the Plan at the exercise price
of $___________ per share (the “Exercise Price”).
2. Payment. Concurrently with the delivery of this Agreement to the Corporation,
Optionee shall pay the Exercise Price for the Purchased Shares in accordance with the provisions of
the Option Agreement and shall deliver whatever additional documents may be required by the Option
Agreement as a condition for exercise, together with a duly-executed blank Assignment Separate from
Certificate (in the form attached hereto as Exhibit I) with respect to the Purchased Shares.
3. Stockholder Rights. Until such time as the Corporation exercises the Repurchase
Right or the First Refusal Right, Optionee (or any successor in interest) shall have all the rights
of a stockholder (including voting, dividend and liquidation rights) with respect to the Purchased
Shares, subject, however, to the transfer restrictions of Articles B and C.
B. SECURITIES LAW COMPLIANCE
1. Restricted Securities. The Purchased Shares have not been registered under the
1933 Act and are being issued to Optionee in reliance upon the exemption from such registration
provided by SEC Rule 701 for stock issuances under compensatory benefit plans such as the Plan.
Optionee hereby confirms that Optionee has been informed that the Purchased Shares are restricted
securities under the 1933 Act and may not be resold or transferred unless the Purchased Shares are
first registered under the Federal securities laws or unless an exemption from such registration is
available. Accordingly, Optionee hereby acknowledges that Optionee is acquiring the Purchased
Shares for investment purposes only and not with a view to resale and is prepared to hold the
Purchased Shares for an indefinite period and that Optionee is aware that SEC Rule 144 issued under
the 1933 Act which exempts certain resales of unrestricted securities is not presently available to
exempt the resale of the Purchased Shares from the registration requirements of the 1933 Act.
2. Restrictions on Disposition of Purchased Shares. Optionee shall make no
disposition of the Purchased Shares (other than a Permitted Transfer) unless and until there is
compliance with all of the following requirements:
(i) Optionee shall have provided the Corporation with a written summary of the
terms and conditions of the proposed disposition.
(ii) Optionee shall have complied with all requirements of this Agreement
applicable to the disposition of the Purchased Shares.
(iii) Optionee shall have provided the Corporation with written assurances, in
form and substance satisfactory to the Corporation, that (a) the proposed
disposition does not require registration of the Purchased Shares under the 1933 Act
or (b) all appropriate action necessary for compliance with the registration
requirements of the 1933 Act or any exemption from registration available under the
1933 Act (including Rule 144) has been taken.
The Corporation shall not be required (i) to transfer on its books any Purchased
Shares which have been sold or transferred in violation of the provisions of this Agreement
or (ii) to treat as the owner of the Purchased Shares, or otherwise to accord voting,
dividend or liquidation rights to, any transferee to whom the Purchased Shares have been
transferred in contravention of this Agreement.
3. Restrictive Legends. The stock certificates for the Purchased Shares shall be
endorsed with one or more of the following restrictive legends:
“The shares represented by this certificate have not been registered under the
Securities Act of 1933. The shares may not be sold or offered for sale in the
absence of (a) an effective registration statement for the shares under such Act,
(b) a “no action” letter of the Securities and Exchange Commission with respect to
such sale or offer or (c) satisfactory assurances to the Corporation that
registration under such Act is not required with respect to such sale or offer.”
“The shares represented by this certificate are subject to certain repurchase
rights and rights of first refusal granted to the Corporation and accordingly may
not be sold, assigned, transferred, encumbered, or in any manner disposed of except
in conformity with the terms of a written agreement dated ____________, 20___
between the Corporation and the registered holder of the shares (or the predecessor
in interest to the shares). A copy of such agreement is maintained at the
Corporation’s principal corporate offices.”
C. TRANSFER RESTRICTIONS
1. Restriction on Transfer. Except for any Permitted Transfer, Optionee shall not
transfer, assign, encumber or otherwise dispose of any of the Purchased Shares which are subject to
the Repurchase Right. In addition, Purchased Shares which are released from the Repurchase Right
shall not be transferred, assigned, encumbered or otherwise disposed of in contravention of the
First Refusal Right or the Market Stand-Off.
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2. Transferee Obligations. Each person (other than the Corporation) to whom the
Purchased Shares are transferred by means of a Permitted Transfer must, as a condition precedent to
the validity of such transfer, acknowledge in writing to the Corporation that such person is bound
by the provisions of this Agreement and that the transferred shares are subject to (i) the
Repurchase Right, (ii) the First Refusal Right and (iii) the Market Stand-Off, to the same extent
such shares would be so subject if retained by Optionee.
3. Market Stand-Off.
(a) In connection with any underwritten public offering by the Corporation of its equity
securities pursuant to an effective registration statement filed under the 1933 Act, including the
Corporation’s initial public offering, Owner shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the purchase of, or otherwise dispose or transfer for
value or otherwise agree to engage in any of the foregoing transactions with respect to, any
Purchased Shares without the prior written consent of the Corporation or its underwriters. Such
restriction (the “Market Stand-Off”) shall be in effect for such period of time from and
after the effective date of the final prospectus for the offering as may be requested by the
Corporation or such underwriters. In no event, however, shall such period exceed one hundred
eighty (180) days, and the Market Stand-Off shall in no event be applicable to any underwritten
public offering effected more than two (2) years after the effective date of the Corporation’s
initial public offering.
(b) Owner shall be subject to the Market Stand-Off provided and only if the officers
and directors of the Corporation are also subject to similar restrictions.
(c) Any new, substituted or additional securities which are by reason of any Recapitalization
or Reorganization distributed with respect to the Purchased Shares shall be immediately subject to
the Market Stand-Off, to the same extent the Purchased Shares are at such time covered by such
provisions.
(d) In order to enforce the Market Stand-Off, the Corporation may impose stop-transfer
instructions with respect to the Purchased Shares until the end of the applicable stand-off period.
D. REPURCHASE RIGHT
1. Grant. The Corporation is hereby granted the right (the “Repurchase
Right”), exercisable at any time during the sixty (60)-day period following the date Optionee
ceases for any reason to remain in Service or (if later) during the sixty (60)-day period following
the execution date of this Agreement but in no event later than ninety (90) days after the
termination of Service, to repurchase at the Repurchase Price any or all of the Purchased Shares in
which Optionee is not, at the time of his or her cessation of Service, vested in accordance with
the Vesting Schedule applicable to those shares or the special vesting acceleration provisions of
any Special Acceleration Addendum to of this Agreement (such shares to be hereinafter referred to
as the “Unvested Shares”).
2. Exercise of the Repurchase Right. The Repurchase Right shall be exercisable by
written notice delivered to each Owner of the Unvested Shares prior to the
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expiration of the sixty (60)-day exercise period. The notice shall indicate the number of
Unvested Shares to be repurchased, the Repurchase Price to be paid per share and the date on which
the repurchase is to be effected, such date to be not more than thirty (30) days after the date of
such notice. The certificates representing the Unvested Shares to be repurchased shall be
delivered to the Corporation on the closing date specified for the repurchase. Concurrently with
the receipt of such stock certificates, the Corporation shall pay to Owner, in cash or cash
equivalents (including the cancellation of any purchase-money indebtedness), an amount equal to the
Repurchase Price for the Unvested Shares which are to be repurchased from Owner.
3. Termination of the Repurchase Right. The Repurchase Right shall terminate with
respect to any Unvested Shares for which it is not timely exercised under Paragraph D.2. In
addition, the Repurchase Right shall terminate and cease to be exercisable with respect to any and
all Purchased Shares in which Optionee vests in accordance with the Vesting Schedule. All
Purchased Shares as to which the Repurchase Right lapses shall, however, remain subject to (i) the
First Refusal Right and (ii) the Market Stand-Off.
4. Aggregate Vesting Limitation. If the Option is exercised in more than one
increment so that Optionee is a party to one or more other Stock Purchase Agreements (the
“Prior Purchase Agreements”) which are executed prior to the date of this Agreement, then
the total number of Purchased Shares as to which Optionee shall be deemed to have a fully-vested
interest under this Agreement and all Prior Purchase Agreements shall not exceed in the aggregate
the number of Purchased Shares in which Optionee would otherwise at the time be vested, in
accordance with the Vesting Schedule, had all the Purchased Shares (including those acquired under
the Prior Purchase Agreements) been acquired exclusively under this Agreement.
5. Recapitalization. Any new, substituted or additional securities or other property
(including cash paid other than as a regular cash dividend) which is by reason of any
Recapitalization distributed with respect to the Purchased Shares shall be immediately subject to
the Repurchase Right and any escrow requirements hereunder, but only to the extent the Purchased
Shares are at the time covered by such right or escrow requirements. Appropriate adjustments to
reflect such distribution shall be made to the number and/or class of Purchased Shares subject to
this Agreement and to the Repurchase Price per share to be paid upon the exercise of the Repurchase
Right in order to reflect the effect of any such Recapitalization upon the Corporation’s capital
structure; provided, however, that the aggregate Repurchase Price shall remain the same.
6. Change in Control.
(a) In the event of a Change in Control, the Repurchase Right shall continue in full force and
effect and shall be assigned to any successor corporation (or the parent thereof) in the Change in
Control transaction. None of the Purchased Shares shall vest on an accelerated basis in connection
with such Change in Control, except to the extent otherwise provided in any Special Acceleration
Addendum to this Agreement.
(b) The Repurchase Right shall apply to any new securities or other property (including any
cash payments) received in exchange for the Purchased Shares in consummation of the Change in
Control, but only to the extent the Purchased Shares are at the
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time covered by such right. Appropriate adjustments shall be made to the Repurchase Price per
share payable upon exercise of the Repurchase Right to reflect the effect (if any) of the Change in
Control upon the Corporation’s capital structure; provided, however, that the aggregate
Repurchase Price shall remain the same. The new securities or other property (including any cash
payments) issued or distributed with respect to the Purchased Shares in consummation of the Change
in Control shall be immediately deposited in escrow with the Corporation (or the successor entity)
and shall not be released from escrow until Optionee vests in such securities or other property in
accordance with the same Vesting Schedule in effect for the Purchased Shares or pursuant to any
Special Acceleration Addendum to this Agreement.
E. RIGHT OF FIRST REFUSAL
1. Grant. The Corporation is hereby granted the right of first refusal (the
“First Refusal Right”), exercisable in connection with any proposed transfer of the
Purchased Shares in which Optionee has vested in accordance with the provisions of Article D. For
purposes of this Article E, the term “transfer” shall include any sale, assignment, pledge,
encumbrance or other disposition of the Purchased Shares intended to be made by Owner, but shall
not include any Permitted Transfer.
2. Notice of Intended Disposition. In the event any Owner of Purchased Shares in
which Optionee has vested desires to accept a bona fide third-party offer for the transfer of any
or all of such shares (the Purchased Shares subject to such offer to be hereinafter referred to as
the “Target Shares”), Owner shall promptly (i) deliver to the Corporation written notice
(the “Disposition Notice”) of the terms of the offer, including the purchase price and the
identity of the third-party offeror, and (ii) provide satisfactory proof that the disposition of
the Target Shares to such third-party offeror would not be in contravention of the provisions set
forth in Articles B and C.
3. Exercise of the First Refusal Right. The Corporation shall, for a period of
twenty-five (25) days following receipt of the Disposition Notice, have the right to repurchase any
or all of the Target Shares subject to the Disposition Notice upon the same terms as those
specified therein or upon such other terms (not materially different from those specified in the
Disposition Notice) to which Owner consents. Such right shall be exercisable by delivery of
written notice (the “Exercise Notice”) to Owner prior to the expiration of the twenty-five
(25)-day exercise period. If such right is exercised with respect to all the Target Shares, then
the Corporation shall effect the repurchase of such shares, including payment of the purchase
price, not more than five (5) business days after delivery of the Exercise Notice; and at such time
the certificates representing the Target Shares shall be delivered to the Corporation.
Should the purchase price specified in the Disposition Notice be payable in property other
than cash or evidences of indebtedness, the Corporation shall have the right to pay the purchase
price in the form of cash equal in amount to the value of such property. If Owner and the
Corporation cannot agree on such cash value within ten (10) days after the Corporation’s receipt of
the Disposition Notice, the valuation shall be made by an appraiser of recognized standing selected
by Owner and the Corporation or, if they cannot agree on an appraiser within twenty (20) days after
the Corporation’s receipt of the Disposition Notice, each shall select an appraiser of recognized
standing and the two (2) appraisers shall designate a third appraiser of
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recognized standing, whose appraisal shall be determinative of such value. The cost of such
appraisal shall be shared equally by Owner and the Corporation. The closing shall then be held on
the later of (i) the fifth (5th) business day following delivery of the Exercise Notice or
(ii) the fifth (5th) business day after such valuation shall have been made.
4. Non-Exercise of the First Refusal Right. In the event the Exercise Notice is not
given to Owner prior to the expiration of the twenty-five (25)-day exercise period, Owner shall
have a period of thirty (30) days thereafter in which to sell or otherwise dispose of the Target
Shares to the third-party offeror identified in the Disposition Notice upon terms (including the
purchase price) no more favorable to such third-party offeror than those specified in the
Disposition Notice; provided, however, that any such sale or disposition must not be
effected in contravention of the provisions of Articles B and C. The third-party offeror shall
acquire the Target Shares subject to the First Refusal Right and the provisions and restrictions of
Article B and Paragraph C.3, and any subsequent disposition of the acquired shares must be effected
in compliance with the terms and conditions of such First Refusal Right and the provisions and
restrictions of Article B and Paragraph C.3. In the event Owner does not effect such sale or
disposition of the Target Shares within the specified thirty (30)-day period, the First Refusal
Right shall continue to be applicable to any subsequent disposition of the Target Shares by Owner
until such right lapses.
5. Partial Exercise of the First Refusal Right. In the event the Corporation makes a
timely exercise of the First Refusal Right with respect to a portion, but not all, of the Target
Shares specified in the Disposition Notice, Owner shall have the option, exercisable by written
notice to the Corporation delivered within five (5) business days after Owner’s receipt of the
Exercise Notice, to effect the sale of the Target Shares pursuant to either of the following
alternatives:
(i) sale or other disposition of all the Target Shares to the third-party
offeror identified in the Disposition Notice, but in full compliance with the
requirements of Paragraph E.4, as if the Corporation did not exercise the First
Refusal Right; or
(ii) sale to the Corporation of the portion of the Target Shares which the
Corporation has elected to purchase, such sale to be effected in substantial
conformity with the provisions of Paragraph E.3. The First Refusal Right shall
continue to be applicable to any subsequent disposition of the remaining Target
Shares until such right lapses.
Owner’s failure to deliver timely notification to the Corporation shall be deemed to be an
election by Owner to sell the Target Shares pursuant to alternative (i) above.
6. Recapitalization/Reorganization.
(a) Any new, substituted or additional securities or other property which is by reason of any
Recapitalization distributed with respect to the Purchased Shares shall be immediately subject to
the First Refusal Right, but only to the extent the Purchased Shares are at the time covered by
such right.
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(b) In the event of a Reorganization, the First Refusal Right shall remain in full force and
effect and shall apply to the new capital stock or other property received in exchange for the
Purchased Shares in consummation of the Reorganization, but only to the extent the Purchased Shares
are at the time covered by such right.
7. Lapse. The First Refusal Right shall lapse upon the earliest to occur of
(i) the first date on which shares of the Common Stock or Class A Common Stock are held of record
by more than five hundred (500) persons, (ii) a determination made by the Board that a public
market exists for the outstanding shares of Common Stock or Class A Common Stock or (iii) a firm
commitment underwritten public offering, pursuant to an effective registration statement under the
1933 Act, covering the offer and sale of the Common Stock or Class A Common Stock in the aggregate
amount of at least twenty million dollars ($20,000,000). However, the Market Stand-Off shall
continue to remain in full force and effect following the lapse of the First Refusal Right.
F. SPECIAL TAX ELECTION
The acquisition of the Purchased Shares may result in adverse tax consequences which may be
avoided or mitigated by filing an election under Code Section 83(b). Such election must be filed
within thirty (30) days after the date of this Agreement. A description of the tax consequences
applicable to the acquisition of the Purchased Shares and the form for making the Code Section
83(b) election are set forth in Exhibit II. OPTIONEE SHOULD CONSULT WITH HIS OR HER TAX ADVISOR TO
DETERMINE THE TAX CONSEQUENCES OF ACQUIRING THE PURCHASED SHARES AND THE ADVANTAGES AND
DISADVANTAGES OF FILING THE CODE SECTION 83(b) ELECTION. OPTIONEE ACKNOWLEDGES THAT IT IS
OPTIONEE’S SOLE RESPONSIBILITY, AND NOT THE CORPORATION’S, TO FILE A TIMELY ELECTION UNDER CODE
SECTION 83(b), EVEN IF OPTIONEE REQUESTS THE CORPORATION OR ITS REPRESENTATIVES TO MAKE THIS FILING
ON HIS OR HER BEHALF.
G. GENERAL PROVISIONS
1. Assignment. The Corporation may assign the Repurchase Right and/or the First
Refusal Right to any person or entity selected by the Board, including (without limitation) one or
more stockholders of the Corporation.
2. At Will Employment. Nothing in this Agreement or in the Plan shall confer upon
Optionee any right to continue in Service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Corporation (or any Parent or Subsidiary employing
or retaining Optionee) or of Optionee, which rights are hereby expressly reserved by each, to
terminate Optionee’s Service at any time for any reason, with or without cause.
3. Notices. Any notice required to be given under this Agreement shall be in writing
and shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, registered
or certified, postage prepaid and properly addressed to the party entitled to such notice
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at the address indicated below such party’s signature line on this Agreement or at such other
address as such party may designate by ten (10) days advance written notice under this paragraph to
all other parties to this Agreement.
4. No Waiver. The failure of the Corporation in any instance to exercise the
Repurchase Right or the First Refusal Right shall not constitute a waiver of any other repurchase
rights and/or rights of first refusal that may subsequently arise under the provisions of this
Agreement or any other agreement between the Corporation and Optionee. No waiver of any breach or
condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
5. Cancellation of Shares. If the Corporation shall make available, at the time and
place and in the amount and form provided in this Agreement, the consideration for the Purchased
Shares to be repurchased in accordance with the provisions of this Agreement, then from and after
such time, the person from whom such shares are to be repurchased shall no longer have any rights
as a holder of such shares (other than the right to receive payment of such consideration in
accordance with this Agreement). Such shares shall be deemed purchased in accordance with the
applicable provisions hereof, and the Corporation shall be deemed the owner and holder of such
shares, whether or not the certificates therefor have been delivered as required by this Agreement.
H. MISCELLANEOUS PROVISIONS
1. Optionee Undertaking. Optionee hereby agrees to take whatever additional action
and execute whatever additional documents the Corporation may deem necessary or advisable in order
to carry out or effect one or more of the obligations or restrictions imposed on either Optionee or
the Purchased Shares pursuant to the provisions of this Agreement.
2. Agreement is Entire Contract. This Agreement constitutes the entire contract
between the parties hereto with regard to the subject matter hereof. This Agreement is made
pursuant to the provisions of the Plan and shall in all respects be construed in conformity with
the terms of the Plan.
3. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California without resort to that State’s conflict-of-laws rules.
4. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and the same
instrument.
5. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Corporation and its successors and assigns and upon Optionee,
Optionee’s permitted assigns and the legal representatives, heirs and legatees of Optionee’s
estate, whether or not any such person shall have become a party to this Agreement and have agreed
in writing to join herein and be bound by the terms hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first
indicated above.
| Kior, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| OPTIONEE
|
||||
| [Name] | ||||
| Address: | ||||
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SPOUSAL ACKNOWLEDGMENT
The undersigned spouse of Optionee has read and hereby approves the foregoing Stock Purchase
Agreement. In consideration of the Corporation’s granting Optionee the right to acquire the
Purchased Shares in accordance with the terms of such Agreement, the undersigned hereby agrees to
be irrevocably bound by all the terms of such Agreement, including (without limitation) the right
of the Corporation (or its assigns) to purchase any Purchased Shares in which Optionee is not
vested at time of his or her cessation of Service.
| OPTIONEE’S SPOUSE | ||||
| Address: | ||||
EXHIBIT I
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED _______________ hereby sell(s), assign(s) and transfer(s) unto Kior, Inc.
(the “Corporation”), _______________ (_________) shares of Class A Common Stock of the
Corporation standing in his or her name on the books of the Corporation represented by Certificate
No. ________________ herewith and do(es) hereby irrevocably constitute and appoint
_____________________ Attorney to transfer the said stock on the books of the Corporation with full
power of substitution in the premises.
Dated: ____________________
| Signature | ||||
Instruction: Please do not fill in any blanks other than the signature line. Please sign exactly
as you would like your name to appear on the issued stock certificate. The purpose of this
assignment is to enable the Corporation to exercise the Repurchase Right without requiring
additional signatures on the part of Optionee.
EXHIBIT II
FEDERAL INCOME TAX CONSEQUENCES AND
SECTION 83(b) TAX ELECTION
SECTION 83(b) TAX ELECTION
I. Federal Income Tax Consequences and Section 83(b) Election For Exercise of
Non-Statutory Option. If the Purchased Shares are acquired pursuant to the exercise of a
Non-Statutory Option, as specified in the Grant Notice, then under Code Section 83, the excess of
the Fair Market Value of the Purchased Shares on the date any forfeiture restrictions applicable to
such shares lapse over the Exercise Price paid for those shares will be reportable as ordinary
income on the lapse date. For this purpose, the term “forfeiture restrictions” includes
the right of the Corporation to repurchase the Purchased Shares pursuant to the Repurchase Right.
However, Optionee may elect under Code Section 83(b) to be taxed at the time the Purchased Shares
are acquired, rather than when and as such Purchased Shares cease to be subject to such forfeiture
restrictions. Such election must be filed with the Internal Revenue Service within thirty (30)
days after the date of the Agreement. Even if the Fair Market Value of the Purchased Shares on the
date of the Agreement equals the Exercise Price paid (and thus no tax is payable), the election
must be made to avoid adverse tax consequences in the future. The form for making this election is
attached as part of this exhibit. FAILURE TO MAKE THIS FILING WITHIN THE APPLICABLE THIRTY
(30)-DAY PERIOD WILL RESULT IN THE RECOGNITION OF ORDINARY INCOME BY OPTIONEE AS THE FORFEITURE
RESTRICTIONS LAPSE.
II. Federal Income Tax Consequences and Conditional Section 83(b) Election For Exercise of
Incentive Option. If the Purchased Shares are acquired pursuant to the exercise of an
Incentive Option, as specified in the Grant Notice, then the following tax principles shall be
applicable to the Purchased Shares:
(i) For regular tax purposes, no taxable income will be recognized at the time
the Option is exercised.
(ii) The excess of (a) the Fair Market Value of the Purchased Shares on the
date the Option is exercised or (if later) on the date any forfeiture restrictions
applicable to the Purchased Shares lapse over (b) the Exercise Price paid for the
Purchased Shares will be includible in Optionee’s taxable income for alternative
minimum tax purposes.
(iii) If Optionee makes a disqualifying disposition of the Purchased Shares,
then Optionee will recognize ordinary income in the year of such disposition equal
in amount to the excess of (a) the Fair Market Value of the Purchased Shares on the
date the Option is exercised or (if later) on the date any forfeiture restrictions
applicable to the Purchased Shares lapse over (b) the Exercise Price paid for the
Purchased Shares. Any additional gain recognized upon the disqualifying disposition
will be either short-term or long-term capital gain depending upon the period for
which the Purchased Shares are held prior to the disposition.
(iv) For purposes of the foregoing, the term “forfeiture restrictions”
will include the right of the Corporation to repurchase the Purchased Shares
pursuant to the Repurchase Right. The term “disqualifying disposition”
means any sale or other disposition1 of the Purchased Shares within two
(2) years after the Grant Date or within one (1) year after the exercise date of the
Option.
(v) In the absence of final Treasury Regulations relating to Incentive Options,
it is not certain whether Optionee may, in connection with the exercise of the
Option for any Purchased Shares at the time subject to forfeiture restrictions, file
a protective election under Code Section 83(b) which would limit Optionee’s ordinary
income upon a disqualifying disposition to the excess of the Fair Market Value of
the Purchased Shares on the date the Option is exercised over the Exercise Price
paid for the Purchased Shares. Accordingly, such election if properly filed will
only be allowed to the extent the final Treasury Regulations permit such a
protective election.
(iv) The Code Section 83(b) election will be effective in limiting the
Optionee’s alternative minimum taxable income to the excess of the Fair Market Value
of the Purchased Shares at the time the Option is exercised over the Exercise Price
paid for those shares.
Page 2 of the attached form for making the election should be filed with any election made in
connection with the exercise of an Incentive Option.
| 1 | Generally, a disposition of shares purchased under an Incentive Option includes any transfer of legal title, including a transfer by sale, exchange or gift, but does not include a transfer to the Optionee’s spouse, a transfer into joint ownership with right of survivorship if Optionee remains one of the joint owners, a pledge, a transfer by bequest or inheritance or certain tax-free exchanges permitted under the Code. |
II-2
SECTION 83(b) ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code, pursuant to
Treas. Reg. Section 1.83-2.
| (1) | The taxpayer who performed the services is: |
| Name: |
| Address: |
| Taxpayer Ident. No.: |
| (2) | The property with respect to which the election is being made is _____________ shares of Class A Common Stock of Kior, Inc. | |
| (3) | The property was issued on ______________, ____. | |
| (4) | The taxable year in which the election is being made is the calendar year ____. | |
| (5) | The property is subject to a repurchase right pursuant to which the issuer has the right to acquire the property at the lower of the purchase price paid per share or the fair market value per share, if for any reason taxpayer’s service with the issuer terminates. The issuer’s repurchase right will lapse in a series of annual and monthly installments over a five (5)-year period ending on ___________, 20__. | |
| (6) | The fair market value at the time of transfer (determined without regard to any restriction other than a restriction which by its terms will never lapse) is $__________ per share. | |
| (7) | The amount paid for such property is $___________ per share. | |
| (8) | A copy of this statement was furnished to Kior, Inc. for whom taxpayer rendered the services underlying the transfer of property. | |
| (9) | This statement is executed on _________________, _____. |
Spouse (if any)
|
Taxpayer |
This election must be filed with the Internal Revenue Service Center with which taxpayer files his
or her Federal income tax returns and must be made within thirty (30) days after the execution date
of the Stock Purchase Agreement. This filing should be made by registered or certified mail,
return receipt requested. Optionee must retain two (2) copies of the completed form for filing
with his or her Federal and state tax returns for the current tax year and an additional copy for
his or her records.
The property described in the above Section 83(b) election is comprised of shares of Class A
Common Stock acquired pursuant to the exercise of an incentive stock option under Section 422 of
the Internal Revenue Code (the “Code”). Accordingly, it is the intent of the Taxpayer to
utilize this election to achieve the following tax results:
1. One purpose of this election is to have the alternative minimum taxable income attributable
to the purchased shares measured by the amount by which the fair market value of such shares at the
time of their transfer to the Taxpayer exceeds the purchase price paid for the shares. In the
absence of this election, such alternative minimum taxable income would be measured by the spread
between the fair market value of the purchased shares and the purchase price which exists on the
various lapse dates in effect for the forfeiture restrictions applicable to such shares.
2. Section 421(a)(1) of the Code expressly excludes from income any excess of the fair market
value of the purchased shares over the amount paid for such shares. Accordingly, this election is
also intended to be effective in the event there is a “disqualifying disposition” of the shares,
within the meaning of Section 421(b) of the Code, which would otherwise render the provisions of
Section 83(a) of the Code applicable at that time. Consequently, the Taxpayer hereby elects to
have the amount of disqualifying disposition income measured by the excess of the fair market value
of the purchased shares on the date of transfer to the Taxpayer over the amount paid for such
shares. Since Section 421(a) presently applies to the shares which are the subject of this Section
83(b) election, no taxable income is actually recognized for regular tax purposes at this time, and
no income taxes are payable, by the Taxpayer as a result of this election. The foregoing election
is to be effective to the full extent permitted under the Code.
THIS PAGE 2 IS TO BE ATTACHED TO ANY SECTION 83(b) ELECTION FILED IN CONNECTION WITH THE EXERCISE
OF AN INCENTIVE STOCK OPTION UNDER THE FEDERAL TAX LAWS.
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APPENDIX
The following definitions shall be in effect under the Agreement:
A. Agreement shall mean this Stock Purchase Agreement.
B. Board shall mean the Corporation’s Board of Directors.
C. Change in Control shall mean a change in ownership or control of the Corporation
effected through any of the following transactions:
(i) a merger, consolidation or other reorganization approved by the
Corporation’s stockholders, unless securities representing more than fifty
percent (50%) of the total combined voting power of the voting securities of the
successor corporation are immediately thereafter beneficially owned, directly or
indirectly and in substantially the same proportion, by the persons who beneficially
owned the Corporation’s outstanding voting securities immediately prior to such
transaction, or
(ii) a stockholder-approved sale, transfer or other disposition of all or
substantially all of the Corporation’s assets in complete liquidation or
dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly by any person or related group of
persons (other than the Corporation or a person that directly or indirectly
controls, is controlled by, or is under common control with, the Corporation), of
beneficial ownership (within the meaning of Rule 13d-3 of the 0000 Xxx) of
securities possessing more than fifty percent (50%) of the total combined voting
power of the Corporation’s outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation’s stockholders.
In no event shall any public offering of the Corporation’s securities be deemed to constitute
a Change in Control.
D. Class A Common Stock shall mean the Corporation’s common stock.
E. Code shall mean the Internal Revenue Code of 1986, as amended.
F. Common Stock shall mean the Corporation’s common stock.
G. Corporation shall mean Kior, Inc., a Delaware corporation, and any successor
corporation to all or substantially all of the assets or voting stock of Kior, Inc. which shall by
appropriate action adopt the Plan.
H. Disposition Notice shall have the meaning assigned to such term in Paragraph E.2.
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I. Exercise Price shall have the meaning assigned to such term in Paragraph A.1.
J. Fair Market Value per share of Common Stock or Class A Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock or Class A Common Stock is at the time traded on the
Nasdaq Global Market, then the Fair Market Value shall be the closing selling price
per share of Common Stock or Class A Common Stock on the date in question, as such
price is reported by the National Association of Securities Dealers on the Nasdaq
Global Market and published in The Wall Street Journal. If there is no
closing selling price for the Common Stock or Class A Common Stock on the date in
question, then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common Stock or Class A Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling price per
share of Common Stock or Class A Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market for the
Common Stock or Class A Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange and published in The Wall Street
Journal. If there is no closing selling price for the Common Stock or Class A
Common Stock on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such quotation exists.
(iii) If the Common Stock or Class A Common Stock is at the time neither listed
on any Stock Exchange nor traded on the Nasdaq Global Market, then the Fair Market
Value shall be determined by the Plan Administrator after taking into account such
factors as the Plan Administrator shall deem appropriate.
K. First Refusal Right shall mean the right granted to the Corporation in accordance
with Article X.
X. Xxxxx Date shall have the meaning assigned to such term in Paragraph A.1.
X. Xxxxx Notice shall mean the Notice of Grant of Stock Option pursuant to which
Optionee has been informed of the basic terms of the Option.
N. Incentive Option shall mean an option which satisfies the requirements of Code
Section 422.
O. Market Stand-Off shall mean the market stand-off restriction specified in Paragraph
C.3.
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P. 1933 Act shall mean the Securities Act of 1933, as amended.
Q. 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
R. Non-Statutory Option shall mean an option not intended to satisfy the requirements
of Code Section 422.
S. Option shall have the meaning assigned to such term in Paragraph A.1.
T. Option Agreement shall mean all agreements and other documents evidencing the
Option.
U. Optionee shall mean the person to whom the Option is granted under the Plan.
V. Owner shall mean Optionee and all subsequent holders of the Purchased Shares who
derive their chain of ownership through a Permitted Transfer from Optionee.
W. Parent shall mean any corporation (other than the Corporation) in an unbroken chain
of corporations ending with the Corporation, provided each corporation in the unbroken chain (other
than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of the other corporations
in such chain.
X. Permitted Transfer shall mean (i) a gratuitous transfer of the Purchased Shares,
provided and only if Optionee obtains the Corporation’s prior written consent to such transfer,
(ii) a transfer of title to the Purchased Shares effected pursuant to Optionee’s will or the laws
of inheritance following Optionee’s death or (iii) a transfer to the Corporation in pledge as
security for any purchase-money indebtedness incurred by Optionee in connection with the
acquisition of the Purchased Shares.
Y. Plan shall mean the Corporation’s Amended and Restated 2007 Stock Option/Stock
Issuance Plan.
Z. Plan Administrator shall mean either the Board or a committee of the Board acting
in its capacity as administrator of the Plan.
AA. Prior Purchase Agreement shall have the meaning assigned to such term in Paragraph
D.4.
BB. Purchased Shares shall have the meaning assigned to such term in Paragraph A.1.
CC. Recapitalization shall mean any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the Corporation’s outstanding
Common Stock or Class A Common Stock as a class without the Corporation’s receipt of consideration.
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DD. Reorganization shall mean any of the following transactions:
(i) a merger or consolidation in which the Corporation is not the surviving
entity,
(ii) a sale, transfer or other disposition of all or substantially all of the
Corporation’s assets,
(iii) a reverse merger in which the Corporation is the surviving entity but in
which the Corporation’s outstanding voting securities are transferred in whole or in
part to a person or persons different from the persons holding those securities
immediately prior to the merger, or
(iv) any transaction effected primarily to change the state in which the
Corporation is incorporated or to create a holding company structure.
EE. Repurchase Price shall mean the lower of (i) the Exercise Price or (ii) the Fair
Market Value per share Class A Common Stock on the date of Optionee’s cessation of Service.
FF. Repurchase Right shall mean the right granted to the Corporation in accordance
with Article D.
GG. SEC shall mean the Securities and Exchange Commission.
HH. Service shall mean the Optionee’s performance of services for the Corporation (or
any Parent or Subsidiary) in the capacity of an employee, subject to the control and direction of
the employer entity as to both the work to be performed and the manner and method of performance, a
non-employee member of the board of directors or an independent consultant.
II. Subsidiary shall mean any corporation (other than the Corporation) in an unbroken
chain of corporations beginning with the Corporation, provided each corporation (other than the
last corporation) in the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
JJ. Target Shares shall have the meaning assigned to such term in Paragraph E.2.
KK. Unvested Shares shall have the meaning assigned to such term in Paragraph D.1.
LL. Vesting Schedule shall mean the vesting schedule specified in the Grant Notice
pursuant to which the Optionee is to vest in the Option Shares in a series of installments over his
or her period of Service.
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