StockOptionAgreement优先认股权协议4doc.docx

1、StockOptionAgreement优先认股权协议4docStock Option Agreement优先认股权协议 - 1. Grant of Option AAA hereby grants to BBB an irrevocable option (the Option ) to acquire up to 1,726,398 shares (the Option Shares ) of the Common Stock, par value $,_ per share, of AAA ( AAA Shares ) in the manner set forth below (i)

2、by exchanging therefor shares of the Common Stock, par value $,_ per share, of BBB ( BBB Shares ) at a rate of two (2) BBB Shares for each Option Share (the Exercise Ratio ) and/or, at BBBs election, (ii) by paying cash at a price determined in accordance with Section 4 below. Capitalized terms used

3、 in this Agreement but not defined herein shall have the meanings ascribed thereto in the Merger Agreement. 2. Exercise of Option The Option may only be exercised by BBB, in whole or in part, at any time or from time to time, upon the occurrence of (i) the commencement of a tender or exchange offer

4、for 25% or more of any class of AAAs capital stock, or (ii) any of the events specified in Section 7.03 (c) of the Merger Agreement, other than events described in Section 7.01(g) thereof (any of the events specified in clauses (i) or (ii) of this sentence being referred to herein as an Exercise Eve

5、nt ). In the event BBB wishes to exercise the Option, BBB shall deliver to AAA a written notice (an Exercise Notice ) specifying the total number of Option shares it wishes to acquire and the form of consideration to be paid. Each closing of a purchase of Option Shares (a Closing ) shall occur on a

6、date and at a time designated by BBB in an Exercise Notice delivered at BBB five business days prior to the date of such Closing, which Closing shall be held at the offices of counsel to AAA. The Option shall terminate upon the earlier of (i) the Effective Time, (ii) 180 days following the terminati

7、on of the Merger Agreement pursuant to Article VII thereof, if an Exercise Event shall have occurred on or prior to the date of such termination, and (iii) the date on which the Merger Agreement is terminated pursuant to Article VII thereof if an Exercise Event shall not have occurred on or prior to

8、 such date; provided, however, with respect to the preceding clause (ii) of this sentence, that if the Option cannot be exercised by reason of any applicable government order, then the Option shall not terminate until the tenth business day after such impediment to exercise shall have been removed o

9、r shall have become final and not subject to appeal. Notwithstanding the foregoing, the Option may not be exercised if BBB is in breach in any material respect of any of its covenants or agreements contained in the Merger Agreement. 3. Conditions to Closing The obligation of AAA to issue Option Shar

10、es to BBB hereunder is subject to the conditions that (a) all consents, approvals, orders or authorizations of, or registrations, declarations or filings with, any Federal, state or local administrative agency or commission or other Federal state or local governmental authority or instrumentality, i

11、f any, required in connection with the issuance of the Option Shares hereunder shall have been obtained or made, as the case may be; and (b) no preliminary or permanent injunction or other order by any court of competent jurisdiction prohibiting or otherwise restraining such issuance shall be in eff

12、ect. 4. Closing At any Closing, (a) AAA shall deliver to BBB a single certificate in definitive form representing the number of AAA Shares designated by BBB in its Exercise Notice, such certificate to be registered in the name of BBB and to bear the legend set forth in Section 10 hereof, and (b) BBB

13、 shall pay to AAA the aggregate purchase price for the AAA Shares so designated and being purchased by delivery of (i) a single certificate in definitive form representing the number of BBB Shares being issued by BBB in consideration therefor (based on the Exercise Ratio), such certificate to be reg

14、istered in the name of AAA and to bear the legend set forth in Section 10 hereof, and/or, at BBBs election, (ii) a certified checks, bank check or wire transfer, as the case may be. If BBB has elected to deliver cash in payment for any AAA Shares, the price to be paid by BBB in cash to AAA at any Cl

15、osing in respect of such AAA Shares shall be $,_ per share (the Exercise Price ). 5. Representations and Warranties of AAA AAA represents and warrants to BBB that (a) AAA is a corporation duly organized, validly existing and in good standing under the laws of the State of _(Placename) and has the co

16、rporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (b) the execution and delivery of this Agreement by AAA and consummation by AAA of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of AAA

17、and no other corporate proceedings on the part of AAA are necessary to authorize this Agreement or any of the transactions contemplated hereby; (c) this Agreement has been duly executed and delivered by AAA and constitutes a legal, valid and binding obligation of AAA and, assuming this Agreement con

18、stitutes a legal, valid and binding obligation of BBB, is enforceable against AAA in accordance with its terms, except as enforceability may be limited by bankruptcy and other laws affecting the rights and remedies of creditors generally and general principles of equity; (d) AAA has taken all necess

19、ary corporate and other action to authorize and reserve for issuance and to permit it to issue upon exercise of the Option, and at all times from the date hereof until the termination of the Option will have reserved for issuance, a sufficient number of unissued AAA Shares for BBB to exercise the Op

20、tion in full and will take all necessary corporate or other action to authorize and reserve for issuance all additional AAA Shares necessary corporate or other action to authorize and reserve for issuance all additional AAA Shares or other securities which may be issuable pursuant to Section 9(a) up

21、on exercise of the Option, all of which, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable; (e) upon delivery of the AAA Shares and any other securities to BBB upon exercise of the Option, BBB will acquire such AAA S

22、hares or other securities free and clear of all material claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever, excluding those imposed by BBB; (f) the execution and delivery of this Agreement by AAA do not, and the performance of this Agreement by AAA will not

23、, (i) violate the Certificate of Incorporation or By-Laws of AAA, (ii) conflict with or violate any order applicable to AAA or any of its subsidiaries or by which they or any of their property is bound or affected or (iii) result in any breach of or constitute a default (or an event which with notic

24、e or lapse of time or both would become a default) under, or give rise to any right of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the property or assets of AAA or any of its subsidiaries pursuant, to any contract or agreement

25、 to which AAA or any of its subsidiaries is a party or by which AAA or any of its subsidiaries or any of their property is bound or affected, except, in the case of clauses (ii) and (iii) above, for violations, conflicts, breaches, defaults, rights of termination, amendment, acceleration or cancella

26、tion, liens or encumbrances which would not, BBBly or in the aggregate, have a Material Adverse Effect on AAA; (g) the execution and delivery of this Agreement by AAA does not, and the performance of this Agreement by AAA will not, require any consent, approval, authorization or permit of, or filing

27、 with, or notification to, any Governmental Entity and (h) any BBB Shares acquired pursuant to this Agreement will not be acquired by AAA with a view to the public distribution thereof and AAA will not sell or otherwise dispose of such shares in violation of applicable law or this Agreement. 6. Repr

28、esentations and Warranties of BBB BBB represents and warrants to AAA that (a) BBB is a corporation duly incorporated, validly existing and in good standing under the laws of the State of _(Placename) and has the corporate power and authority to enter into this Agreement and to carry out its obligati

29、ons hereunder; (b) the execution and delivery of this Agreement by BBB and the consummation by BBB of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of BBB and no other corporate proceedings on the part of BBB are necessary to authorize t

30、his Agreement or any of the transactions contemplated hereby; (c) this Agreement has been duly executed and delivered by BBB and constitutes a legal, valid and binding obligation of BBB and, assuming this Agreement constitutes a legal, valid and binding obligation of AAA, is enforceable against BBB

31、in accordance with its term, except as enforceability may be limited by bankruptcy and other laws affecting the rights and remedies of creditors generally and general principles of equity; (d) BBB has taken (or will in a timely manner take) all necessary corporate and other action to authorize and r

32、eserve for issuance and to permit it to issue upon exercise of the Option and will take all necessary corporate or other action to authorize and reserve for issuance all additional BBB Shares or other securities which may be issuable pursuant to Section 9(b) upon exercise of the Option, all of which

33、, upon their issuance and delivery in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable; (e) upon delivery of AAA Shares to BBB in consideration of any acquisition of BBB Shares pursuant hereto, BBB will acquire such AAA Shares free and clear of all material claims, liens, charges, encumbrance