StockOptionAgreement优先认股权协议7docWord文档格式.docx

1、StockOptionAgreement优先认股权协议7doc#Stock Option Agreement优先认股权协议 - #WHEREAS, Parent and the Company are concurrently with the execution and delivery of this Agreement entering into an Agreement and Plan of Merger （the Merger Agreement ） pursuant to which, among other things, Merger Subsidiary will merg

2、e with and into the Company on the terms and subject to the conditions stated therein;# and WHEREAS, in order to induce Parent to enter into the Merger Agreement and as a condition for Parents agreeing so to do, the Company has granted to Parent the Stock Option （as hereinafter defined）, on the term

3、s and conditions set forth herein;# NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the Merger Agreement, and for other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties hereto agree as follows:# Section 1. Defi

4、nitions. Capitalized terms used and not defined herein have the respective meanings assigned to them in the Merger Agreement. Section 2. Grant of Stock Option. The Company hereby grants to Parent an irrevocable option （the Stock Option ） to purchase, on the terms and subject to the conditions hereof

5、, for $,_ per share （the Exercise Price ） in cash, up to _ fully paid and non-assessable shares （the Option Shares） of the Companys common stock, par value $,_ per share （the Common Stock ）. The Exercise Price and number of Option Shares shall be subject to adjustment as provided in Section 5 below.

6、 Section 3. Exercise of Stock Option. （a） Parent may, subject to the provisions of this Section 3, exercise the Stock Option, in whole or in part, at any time or from time to time, after the occurrence of a Company Trigger Event （defined below） and prior to the Termination Date. Termination Date sha

7、ll mean, subject to Section 9（a）, the earliest of （i） the Effective Time of the Merger, （ii） 120 days after the date full payment contemplated by Section 10.5（a） of the Merger Agreement is made by the Company to Parent thereunder, （iii） the date of the termination of the Merger Agreement so long as,

8、 in the case of this clause （iii）, no Company Trigger Event has occurred or could still occur pursuant to Section 10.5（a） of the Merger Agreement or （iv） the first anniversary of the date of termination of the Merger Agreement. Notwithstanding the occurrence of the Termination Date, Parent shall be

9、entitled to purchase Option Shares pursuant to any exercise of the Stock Option, on the terms and subject to the conditions hereof, to the extent Parent exercised the Stock Option prior to the occurrence of the Termination Date. A Company Trigger Event shall mean an event the result of which is that

10、 the total fee or fees required to be paid by the Company to Parent pursuant to Section 10.5（a） of the Merger Agreement is equal to $,_ million. （b） Parent may purchase Option Shares pursuant to the Stock Option only if all of the following conditions are satisfied:# （i） no preliminary or permanent

11、injunction or other order issued by any federal or state court of competent jurisdiction in the United States shall be in effect prohibiting delivery of the Option Shares, （ii） any waiting period applicable to the purchase of the Option Shares under the HSR Act shall have expired or been terminated,

12、 and （iii） any prior notification to or approval of any other regulatory authority in the United States or elsewhere required in connection with such purchase shall have been made or obtained, other than those which if not made or obtained would not reasonably be expected to result in a significant

13、detriment to the Company and its Subsidiaries, taken as a whole. （c） If Parent shall be entitled to and wishes to exercise the Stock Option, it shall do so by giving the Company written notice （the Stock Exercise Notice ） to such effect, specifying the number of Option Shares to be purchased and a p

14、lace and closing date not earlier than three business days nor later than 10 business days from the date of such Stock Exercise Notice. If the closing cannot be consummated on such date because any condition to the purchase of Option Shares set forth in Section 3（b） has not been satisfied or as a re

15、sult of any restriction arising under any applicable law or regulation, the closing shall occur five days （or such earlier time as Parent may specify） after satisfaction of all such conditions and the cessation of all such restrictions. （d） So long as the Stock Option is exercisable pursuant to the

16、terms of Section 3（a）, Parent may elect to send a written notice to the Company （the Cash Exercise Notice ） specifying a date not later than 20 business days and not earlier than 5 business days following the date such notice is given on which date the Company shall pay to Parent in exchange for the

17、 cancellation of the relevant portion of the Stock Option an amount in cash equal to the Spread （as hereinafter defined） multiplied by all or such relevant portion of the Option Shares subject to the Stock Option as Parent shall specify. As used herein, Spread shall mean the excess, if any, over the

18、 Exercise Price of the higher of （x） if applicable, the highest price per share of Common Stock paid or proposed to be paid by any Person pursuant to any Acquisition Proposal relating to Parent （the Proposed Alternative Transaction Price ） or （y） the average of the closing prices of the shares of Co

19、mmon Stock on the principal securities exchange or quotation system on which the Common Stock is then listed or traded as reported in The Wall Street Journal （but subject to correction for typographical or other manifest errors in such reporting） for the five consecutive trading days immediately pre

20、ceding the date on which the Cash Exercise Notice is given （the Average Market Price ）. If the Proposed Alternative Transaction Price includes any property other than cash, the Proposed Alternative Transaction Price shall be the sum of （i） the fixed cash amount, if any, included in the Proposed Alte

21、rnative Transaction Price plus （ii） the fair market value of such other property. If such other property consists of securities with an existing public trading market, the average of the closing prices （or the average of the closing bid and asked prices if closing prices are unavailable） for such se

22、curities in their principal public trading market on the five trading days ending five days prior to the date on which the Cash Exercise Notice is given shall be deemed to equal the fair market value of such property. If such other property includes anything other than cash or securities with an exi

23、sting public trading market, the Proposed Alternative Transaction Price shall be deemed to equal the Average Market Price. Upon exercise of its right pursuant to this Section 3（d） and the receipt by Parent of the applicable cash amount with respect to the Option Shares or the applicable portion ther

24、eof, the obligations of the Company to deliver Option Shares pursuant to Section 3（e） shall be terminated with respect to the number of Option Shares specified in the Cash Exercise Notice. The Spread shall be appropriately adjusted, if applicable, to give effect to Section 5. （e） （i） At any closing

25、pursuant to Section 3（c） hereof, Parent shall make payment to the Company of the aggregate purchase price for the Option Shares to be purchased and the Company shall deliver to Parent a certificate representing the purchased Option Shares, registered in the name of Parent or its designee and （ii） at

26、 any closing pursuant to Section 3（d） hereof, the Company will deliver to Parent cash in an amount determined pursuant to Section 3（d） hereof. Any payment made by Parent to the Company, or by the Company to Parent, pursuant to this Agreement shall be made by wire transfer of immediately available fu

27、nds to a bank designated by the party receiving such funds, provided that the failure or refusal by the Company to designate such a bank account shall not preclude Parent from exercising the Stock Option. If at the time of the issuance of Options Shares pursuant to the exercise of the Stock Option,

28、Company Rights or any similar securities are outstanding, then the Option Shares issued pursuant to such exercise shall be accompanied by corresponding Company Rights or such similar securities. （f） Certificates for Common Stock delivered at the closing described in Section 3（c） hereof shall be endo

29、rsed with a restrictive legend which shall read substantially as follows:# The transfer of the shares represented by this certificate is subject to resale restrictions arising under the Securities Act of 1933, as amended. It is understood and agreed that the above legend shall be removed by delivery

30、 of substitute certificate（s） without this reference （i） if Parent shall have delivered to the Company a copy of a no-action letter from the staff of the Securities and Exchange Commission, or a written opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect t

31、hat such legend is not required for purposes of, or resale may be effected pursuant to an exemption from registration under, the Securities Act or （ii） in connection with any sale registered under the Securities Act. In addition, these certificates shall bear any other legend as may be required by a

32、pplicable law. Section 4. Representations of Parent. Parent hereby represents and warrants to the Company that any Option Shares acquired by Parent upon the exercise of the Stock Option will not be, and the Stock Option is not being, acquired by Parent with the intention of making a public distribut

33、ion thereof, other than pursuant to an effective registration statement under the Securities Act or otherwise in compliance with the Securities Act. Section 5. Adjustment upon Changes in Capitalization or Merger. （a） In the event of any change in the outstanding shares of Common Stock by reason of a stock dividend, stock split, reverse stock split, s