Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3: (a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee; (b) At the discretion of the Employee: (i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or (ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or (iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act. (iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii). (c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares. (d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (STRATA Skin Sciences, Inc.)
Manner of Exercise. The OptionSubject to the terms of the Plan, or any exercisable portion thereof, the Option may be exercised solely by delivery (i) delivering to the Secretary of the Company of all of the following Company, prior to the time when expiry of the Option, an option exercise form duly executed by the Optionee or its Legal Representative (the “Option Exercise Form”) substantially in the form of Schedule “A” completed and executed in a manner acceptable to the Company, acting reasonably, or such portion may no longer be exercised (ii) in a manner and pursuant to such procedures as the provisions Board of Article 3:
(a) Notice in writing signed by Directors may determine, which will state the Employee or the other person then entitled election to exercise the Option, stating that Option (with appropriate proof of completion of such exercise procedure) (the “Alternative Exercise Procedure”). The Option Exercise Form or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion completion of the Employee:
Alternative Exercise Procedure (ias applicable) delivery of must be accompanied by payment in full payment (in cash or by check) for the shares with number of Common Shares in respect to of which the Option is being exercised, in cash, bank draft, certified cheque or portion is exercised; or
(ii) surrender other form of payment acceptable to the Company, made payable to the Company at its principal place of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect business at the time of such exercise. It is specifically intended that any such the exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 Option. Payment of the Exchange Act.
(iv) delivery aggregate exercise price will be by any of the following, or a combination thereof, at the election of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
Optionee: (a) cash; (b) cheque; (c) A bona fide written representation and agreement consideration received by the Company under a formal cashless exercise (which, for clarity, may include net exercise) program adopted by the Company in connection with the Plan; or (d) surrender of other Common Shares which have a form satisfactory Fair Market Value Price on the date of surrender equal to the Committeeaggregate exercise price of the exercised Common Shares, signed by provided that accepting such Common Shares, in the Employee or other person then entitled sole discretion of the Board of Directors, will not result in any adverse accounting consequences to the Company. The Optionee may not exercise such the Option or portionunless the tax withholding obligations of the Company, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as its subsidiaries and/or any of its Affiliate are satisfied. Accordingly, the Optionee may not be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled able to exercise the Option or portion will indemnify when desired even though the Option is vested, and the Company against and hold it free and harmless from any losswill have no obligation to issue a certificate for such Common Shares, damage, expense or liability resulting to the Company if any sale or distribution of the shares by unless such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesobligations are satisfied.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Share Option Agreement (Xenon Pharmaceuticals Inc.)
Manner of Exercise. The Option, Option or any exercisable portion thereof, thereof may be exercised solely by delivery delivering to the Office of the Secretary of the Company of PRIMEDIA all of the following prior to the time when close of business on the Option or such portion may no longer be exercised pursuant to the provisions of Article 3Expiration Date:
(a) Notice notice in writing writing, signed by the Employee or the other person then entitled to exercise the OptionExercising Party, stating that the number of Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares Shares with respect to which the Option is being exercised;
(b) full payment of the exercise price for the Option Shares with respect to which such Option or portion thereof is exercised; or
, at a rate of $12.3125 per Option Share, which may be made (iii) surrender by delivery to the Company of that number cash, a wire transfer of fully paid and non-assessable immediately available funds, or a check payable to the order of the Company in an amount equal to the exercise price of such Option Shares; (ii) by delivering to the Company shares of Common Stock owned (which, in the event they were acquired in a Compensatory Transaction, shall have been held by Employee based on the Optionee for at least six months before the date of such exercise) having an aggregate Fair Market Value (as that term is defined in on the Plan) date of presentation equal to applicable the exercise price; or
price of such Option Shares: (iii) delivery of notice of a "net value" exercise which reduces through reasonable procedures that afford the number of shares Optionee the opportunity to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes sell immediately some or all of the foregoing formula: A = Option Shares underlying the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise exercised portion of this Option; and C = , including without limitation, through a "brokered exercise" by delivery or irrevocable instructions to a broker to sell a portion of Option Shares deliverable upon the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (Option sufficient to result in net proceeds at least equal to the "Exchange Act"), as provided by Rule 16b-3 aggregate exercise price of the Exchange Act.
portion of the Option so exercised and to deliver promptly to the Company an amount equal to such aggregate exercise price or (iv) delivery of a by any combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii(i),(ii) or (iii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event that the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than Exercising Party is not the EmployeeOptionee, appropriate proof proof, in the sole judgment of PRIMEDIA, of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 2.3:
(a) Notice in writing An exercise notice signed or submitted online using the website of the Company’s designated brokerage firm by the Employee Holder or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in such form as is prescribed by the Administrator; and
(b) At the discretion Subject to Section 6.2(d) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on Holder for at least six (6) months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that ▇▇▇▇▇▇ has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the shares of Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation Such representations and agreement documents as the Administrator, in a form satisfactory its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee any other federal or other person then entitled to exercise the Option state securities laws or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to aboveregulations. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which in the discretion of the Administrator may be in the form of consideration used by Holder to pay for such shares under Section 3.3(b), subject to Section 10.4 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeHolder, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Leap Wireless International Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office, or such other place as may be determined by the Administrator, of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employeebecomes unexercisable under Section 4:
(i) delivery of full payment (A written exercise notice in cash or by check) for substantially in the shares with respect to which the Option or portion is exercised; or
(ii) surrender form attached as Exhibit B to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value Grant Notice (or such other form as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported prescribed by the principal national securities exchange on Administrator, which the Common Stock is then tradedmay be an electronic form) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv“Exercise Notice”) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares Participant or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify thereof, stating that the Company against and hold it free and harmless from any lossOption or portion thereof is thereby exercised, damagesuch Exercise Notice complying with all applicable rules established by the Administrator; and
(ii) Subject to Section 5(f) of the Plan, expense full payment for the Shares with respect to which the Option or liability resulting portion thereof is exercised by:
(A) Cash or check, payable to the Company if any sale or distribution order of the shares by such person is contrary to Company; or
(B) With the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality consent of the foregoingAdministrator, the Committee may require an opinion surrendering shares of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired Common Stock then issuable upon the exercise of the Option does not violate valued at their Fair Market Value on the Act date of exercise; or
(C) On and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon after the date the Company becomes a Publicly Listed Company, through the (A) delivery by Participant to the Company of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price or (B) delivery by Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price; or
(D) With the consent of the Option shall bear an appropriate legend referring Administrator, any other form of payment permitted under Section 5(f) of the Plan; or
(E) any combination of the above permitted forms of payment; and
(iii) Subject to Section 9(e) of the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to Plan, full payment for any applicable withholding taxes in cash or by check or in the first sentence form of this Section 4.3(c) shall, however, not be required if consideration permitted by the shares to be issued Administrator for the payment of the exercise price pursuant to such exercise have been registered under Section 3(c)(ii) above or pursuant to Section 3(d) below, which, following the Act and such registration is then effective date the Company becomes a Publicly Listed Company shall include the method provided for in respect of such shares.Section 3(c)(ii)(C) above; and
(div) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeParticipant, appropriate proof of the right of such person or persons to exercise the Option; and
(v) In the event the Option or portion thereof shall be exercised as to Restricted Shares, the following (collectively, the “Additional Documents”):
(A) the stock assignment duly endorsed in blank, attached as Exhibit C to the Grant Notice (the “Stock Assignment”), executed by Participant; and
(B) if Participant has a spouse of Participant, the Consent of Spouse attached as Exhibit D to the Grant Notice, executed by Participant’s spouse.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing A written notice complying with the applicable rules established by the Committee stating that the Option, or a portion thereof, is exercised. The notice shall be signed by the Employee Optionee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:portion; and
(i) delivery Full cash payment to the Secretary of full payment (in cash or by check) the Company for the shares with respect to which the such Option or portion is exercised; or
(ii) surrender to With the Company consent of that number of fully paid and non-assessable the Committee, (A) shares of the Company's Common Stock owned by Employee based on the Optionee, duly endorsed for transfer to the Company, with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise price of the Option or exercised portion thereof, or (B) shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option, with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; or
(iv) With the consent of the Committee, property of any kind which constitutes good and valuable consideration; or
(v) With the consent of the Committee, a notice that the Optionee has placed a market sell order with a broker with respect to shares of the Company's Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; or
(iiivi) delivery of notice of a "net value" exercise which reduces With the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes consent of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that Committee, any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii), (iii), (iv) and 4.3(b)(ii(v).; and
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the EmployeeOptionee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or any Subsidiary) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Committee, (i) shares of the Company's Common Stock owned by the Optionee, duly endorsed for transfer, with a Fair Market Value equal to the sums required to be withheld, or (ii) shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option with a Fair Market Value equal to the sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Scoop Inc/De)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeAdministrator;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash cash, by check or by checka combination thereof) for the shares Shares with respect to which the such Option or portion thereof is exercised; or
, (ii) surrender to the Company extent permitted EAST\146727668.1 9/20/17 020471-000001 by the Administrator in a manner that is compliant with the terms of the Plan, indication that the Optionee elects to have the number of fully paid and non-assessable shares Shares that would otherwise be issued to the Optionee reduced by a number of Common Stock owned by Employee based on the Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to Laureate pursuant to clause (as that term is defined in the Plani) equal to applicable exercise price; or
of this subsection (b), or (iii) delivery of notice of a "net value" broker-assisted cashless exercise which reduces through a brokerage firm designated or approved by the number of shares Administrator;
(i) Full payment (in cash, by check or by a combination thereof) to be received upon such exercise to a "Net Number" of shares determined according to satisfy the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares withholding tax obligation with respect to which this such Option or portion thereof is then being exercised; B = exercised or (ii) to the last reported sale price (as reported extent permitted by the principal national securities exchange on which Administrator in a manner that is compliant with the Common Stock is then traded) terms of the Common Stock Plan, indication that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee upon exercise of such Option (or portion thereof) reduced by a number of Shares having an aggregate Fair Market Value, on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory equal to the Committee, signed payment to satisfy the minimum withholding tax obligation that would otherwise be required to be made by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting Optionee to the Company if any sale or distribution of the shares by such person is contrary pursuant to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions clause (i) of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.subsection (c); and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
(e) At the time the Option is exercised, in whole or in part, or at any time thereafter as requested by the Company, the Optionee hereby authorizes withholding from payroll or any other payment of any kind due to the Optionee and otherwise agrees to make adequate provision for foreign (non-US), federal, state and local taxes required by law to be withheld, if any, which arise in connection with the Option. The Company may require the Optionee to make a cash payment to cover any withholding tax obligation as a condition of exercise of the Option or issuance of Shares upon exercise.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeAdministrator;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by checkcash) for the shares with respect to which the such Option or portion is exercised; or;
(ii) surrender Payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on then issuable upon exercise of the Fair Market Value (as Option, and that term is defined the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Plan) equal to applicable Option exercise price, provided that payment of -------- such proceeds is then made to the Company upon settlement of such sale; or
(iii) delivery of notice of a "net value" exercise which reduces With the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes consent of the foregoing formula: A = Administrator, any other consideration permitted under the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii)Plan.
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeAdministrator, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.;
(d) Full payment to the Company (or Subsidiary employer) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option, which, with the consent of the Administrator, may be in the form of consideration used by the Optionee to pay for such shares under Section 4.3(b); provided, however, that if such payment is in the form of shares of Common Stock withheld from exercise or delivered by the Optionee, the Fair Market Value of such shares shall not exceed the sums necessary to pay the tax withholding based on the minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Varco International Inc /De/)
Manner of Exercise. The Option, or any exercisable portion thereof, may Each exercise of this Option shall be exercised solely by delivery means of ------------------ a written notice of exercise delivered to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionCompany, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces specifying the number of shares to be received purchased and accompanied by payment to the Company of the full purchase price of the shares to be purchased solely (i) in cash or by check payable to the order of the Company, (ii) by delivery of shares of Common Stock of the Company already owned by, and in the possession of, Optionee, valued at their fair market value, as determined in accordance with Section 4 hereof, or (iii) (x) by a promissory note made by Optionee in favor of the Company, upon such the terms and conditions determined by the Committee including, to the extent the Committee determines appropriate, a security interest in the shares issuable upon exercise to or other property, or (y) through a "Net Numbercashless exercise," in either case complying with applicable law (including, without limitation, state and federal margin requirements), or any combination thereof. Shares of shares Common Stock used to satisfy the exercise price of this Option shall be valued at their fair market value determined according to (in accordance with Section 4 hereof) on the following formula: Net Number = date of exercise (A x (B - C))/B. For purposes or if such date is not a business day, as of the foregoing formula: A = close of the business day immediately preceding such date). This Option may not be exercised for a fraction of a share and no partial exercise of this Option may be for less than (a) one hundred (100) shares or (b) the total number of shares with respect then eligible for exercise, if less than one hundred (100) shares. This Option may be exercised (i) during the lifetime of Optionee only by Optionee; (ii) to which this Option is then being exercised; B = the last reported sale price (as reported extent permitted by the principal national securities exchange on which Committee or by the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise terms of this OptionAgreement, Optionee's spouse if such spouse obtained the Option pursuant to a qualified domestic relations order as defined by the Code or Title I of ERISA, or the rules thereunder ("Qualified Domestic Relations Order"); and C = (iii) after Optionee's death by his or her transferees by will or the exercise price then in effect at the time laws of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Actdescent or distribution.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Participant or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in the form attached as Exhibit B to the Grant Notice (or such other form as is prescribed by the Administrator); and
(b) At the discretion Subject to Section 5.1(c) of the EmployeePlan, full payment for the shares of Stock with respect to the Option is being exercised, pursuant to one or more of the following methods:
(i) delivery of full payment (in In cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender Through the delivery of previously-acquired shares of Stock duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) Through the delivery of a notice of that Participant has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is shares of Stock then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Optionprice; and C = the exercise price then in effect at the time provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery By directing the Company to withhold such number of a shares of Stock otherwise issuable in connection with the exercise of the Option having an aggregate Fair Market Value equal to the exercise price of the Option or exercised portion thereof; or
(v) Subject to any applicable laws, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii), (iii) and 4.3(b)(ii(iv).; and
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that regulations and any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.other applicable law; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which may be in the form of consideration used by Participant to pay for such shares under Section 4.3(b), subject to Section 14.3 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeParticipant, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 2.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Committee stating that the discretion of the Employee:
(i) delivery of full payment (in cash Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option or such portion will indemnify of the Option;
(b) Full cash payment to the Secretary of the Company against for the shares with respect to which the Option, or portion thereof, is exercised. However, the Committee may in its sole and hold it free and harmless absolute discretion (i) allow a delay in payment up to thirty (30) days from any lossthe date the Option, damageor portion thereof, expense is exercised; (ii) allow payment, in whole or liability resulting in part, through the delivery of shares of Common Stock which have been owned by the Optionee for at least six months, duly endorsed for transfer to the Company if any sale or distribution with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; (iii) allow payment, in whole or in part, through the surrender of shares by such person is contrary of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of Option exercise equal to the representation aggregate exercise price of the Option or exercised portion thereof; (iv) allow payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to shares of Common Stock then issuable upon exercise of the Option, and agreement referred that the broker has been directed to above. The Committee maypay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided that payment of such proceeds is then made to the Company upon settlement of such sale; or (v) allow payment through any combination of the consideration provided in the foregoing subparagraphs (ii), (iii) and (iv);
(c) Such representations and documents as the Committee, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Committee may, the Committee may require an opinion of counsel acceptable in its absolute discretion, also take whatever additional actions it deems appropriate to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act such compliance including, without limitation, placing legends on share certificates and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to If the Company of that number of fully paid and non-assessable Committee shall so permit, shares of Common Stock owned by Employee based the Optionee duly endorsed for transfer to the Company with a fair market value on the Fair Market Value (as that term is defined in the Plan) date of delivery equal to applicable exercise pricethe aggregate purchase price of the shares with respect to which such Option or portion is exercised; or
(iii) delivery If the Committee shall so permit, shares of notice Common Stock issuable in connection with the exercise of the Option with a "net value" fair market value on the date of exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according equal to the following formula: Net Number = (A x (B - C))/B. For purposes aggregate purchase price of the foregoing formula: A = the total number of shares with respect to which this such Option or portion is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.or
(iv) delivery of If the Committee shall so permit, a combination of the consideration provided in the foregoing Sections 4.3(b)(i), 4.3(b)(ii) and 4.3(b)(ii4.3(b)(iii).;
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such the Option or portion, stating that the shares of Common Stock are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act Act, and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and Section 5.2 and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.;
(d) Written joinders to each Stockholders Agreement, if such agreement(s) shall be in effect, as provided in Section 5.2 hereof; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Sequoia Vaccines, Inc.)
Manner of Exercise. The Option, or any Option is exercisable portion thereof, may be exercised solely by delivery written notice to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing Company, signed by the Employee Optionee or other authorized person, in the form attached to this Option. Such notice must be accompanied by payment in full of the Stock Option Price of the Optioned Shares being purchased. Such notice and payment must either be actually delivered to the Company or sent by certified mail to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other person then entitled address as the Company may direct). Within five business days after receipt of such notice and payment, the Company shall deliver to the Optionee certificates representing the Optioned Shares purchased, registered in the name of the Optionee (or such other name as the Optionee may designate in such notice), free and clear of any liens, claims, encumbrances or restrictions. Upon such exercise, the Optionee shall be deemed the record owner of the Optioned Shares purchased upon such exercise without regard to the date on which the related certificate is issued. Notwithstanding the foregoing, if the Option is exercised at any time after the approval or announcement of a transaction described in Section 3 which would accelerate the exercisability of the Option (whether or not the Option has theretofore become fully exercisable), the Optionee may exercise the Option, stating that Option conditioned upon the Option consummation of said transaction (and may give notice of such exercise at any time after such approval or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(bannouncement) At the discretion of the Employee:
and (i) delivery if the transaction is consummated, the Optionee shall be deemed to have been the record owner of full payment the Optioned Shares immediately prior to and on the effective date of the transaction and (ii) if the transaction is not consummated, the Company shall return the notice of exercise and related payments (in cash the form received from the Optionee) to the Optionee and the Option shall be restored to the status it would then have if the transaction had not been approved or by check) for announced; provided, however, that if the shares with respect Option would otherwise expire, the Optionee may instruct the Company to retain the exercise notice and payment and issue the Optioned Shares as to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined had become exercisable in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares accordance with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Actits terms.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (United States Exploration Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Director or the other person then entitled to exercise the OptionOption or portion, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeAdministrator or its designee;
(b) At Full payment to the discretion Company of the Employeeaggregate exercise price, which payment shall be by any of the following, or a combination thereof:
(i) delivery of full payment (in In cash or by check) for the shares with respect to which the Option or portion is exercised; or;
(ii) surrender Through the delivery of a notice that the Director has placed a market sell order with a broker with respect to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on then issuable upon exercise of the Fair Market Value (as that term is defined Option, and the broker pays a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Plan) equal to applicable Option exercise price; or
(iii) delivery With the consent of notice of a "net value" exercise which reduces the number Administrator, through the surrender of shares to be received of Common Stock then issuable upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange having a Fair Market Value on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of Option exercise equal to the applicable exercise of this Option; and C = the aggregate exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.Option or exercised portion thereof;
(iv) delivery of a combination With the consent of the Administrator, through the delivery (actually or constructively) of shares of Common Stock to the Company with a Fair Market Value on the date of Option exercise equal to the aggregate exercise price of the Option or exercised portion thereof; or
(v) With the consent of the Administrator, through any other consideration provided in permitted under the foregoing Sections 4.3(b)(i), Plan and 4.3(b)(ii)applicable law.
(c) A bona fide written representation and agreement in a form satisfactory Full payment to the CommitteeCompany (or Affiliate employer) of all amounts which, signed under federal, state or local tax law, it is required to withhold upon exercise of the Option, which, with the consent of the Administrator, may be in the form of consideration used by the Employee or other person then entitled Director to exercise pay for such Option or portionshares under Section 4.3(b); provided, stating however, that if such payment is in the form of shares of Common Stock are being acquired for withheld from exercise or delivered (actually or constructively) by the Employee's own accountDirector, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance Fair Market Value of such representation shares shall not exceed the sums necessary to pay the tax withholding based on the minimum statutory withholding rates for federal and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingtax purposes, the Committee may require an opinion of counsel acceptable to it to the effect including payroll taxes, that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant are applicable to such exercise have been registered under the Act and such registration is then effective in respect of such shares.supplemental taxable income; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeDirector, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Complete Production Services, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office, or such other place as may be determined by the Administrator, of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) Notice An exercise notice substantially in the form attached as Exhibit A hereto (or such other form as is prescribed by the Administrator) (the “Exercise Notice”) in writing signed by the Employee Optionee or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator; and
(b) At the discretion Subject to Section 5(f) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares Shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, by delivery of fully paid and non-assessable shares Shares then issuable upon exercise of Common Stock owned by Employee based on the Option having a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) With the consent of the Administrator, through the (A) delivery of notice of a "net value" exercise which reduces by the number of shares to be received upon such exercise to a "Net Number" of shares determined according Optionee to the following formula: Net Number = (A x (B - C))/B. For purposes Company of an irrevocable and unconditional undertaking by a broker acceptable to the foregoing formula: A = Company to deliver promptly to the total number of shares with respect Company sufficient funds to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = pay the exercise price or (B) delivery by the Optionee to the Company or a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to pay the exercise price; provided that payment is then in effect made to the Company at such time as may be required by the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.Administrator; or
(iv) delivery With the consent of a the Administrator, any other method of payment permitted under the terms of the Plan; or
(v) Subject to any applicable laws, any combination of the consideration provided in allowed under the foregoing Sections 4.3(b)(i), and 4.3(b)(ii)paragraphs.
(c) The receipt by the Company of full payment for any applicable withholding tax in cash or by check or in the form of consideration to be agreed upon by the Optionee and the Administrator;
(d) A bona fide written representation and joinder or other agreement in a the form satisfactory to provided by the Committee, Company signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares Optionee or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify thereof, stating that the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired Shares received upon the exercise of the Option does not violate or portion thereof are subject to the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise terms of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.Stockholder Agreement; and
(de) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.5 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Life Time Group Holdings, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionOption or portion, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:Administrator; and
(i) delivery of full Full payment (in cash by cashiers check or by checkwire transfer) for the shares with respect to which the such Option or portion is exercised; or
(ii) surrender to With the Company consent of that number of fully paid and non-assessable the Administrator, (A) shares of the Company's Common Stock owned by the Employee based on duly endorsed for transfer to the Fair Market Value Company or (B) subject to the timing requirements of Section 4.4, shares of the Company's Common Stock issuable to the Employee upon exercise of the Option, with a fair market value (as that term is defined in determined under Section 4.2(b) of the Plan) on the date of Option exercise equal to applicable exercise pricethe aggregate purchase price of the shares with respect to which such Option or portion is exercised; or
(iii) With the consent of the Administrator; a promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Administrator. The Administrator may also prescribe the form of such note and the security to be given for such note. That Option may not be exercised, however, by delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to promissory note or by a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt loan from the "short-swing profit" rule Company when or where such loan or other extension of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided credit is prohibited by Rule 16b-3 of the Exchange Act.law; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i) - (iii), and 4.3(b)(ii).; and
(cb) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeAdministrator, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.;
(c) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Administrator, (i) shares of the Company's Common Stock owned by the Employee duly endorsed for transfer or (ii) subject to the timing requirements of Section 4.4, shares of the Company's Common Stock issuable to the Employee upon exercise of the Option, valued in accordance with Section 4.2(b) of the Plan at the date of Option exercise, may be used to make all or part of such payment; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company Chief Executive Officer or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or a portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:; and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the such Option or a portion thereof is exercised; or and
(ii) With the consent of the Committee, (A) shares of the Company's Common Stock owned by the Optionee duly endorsed for transfer to the Company or (B) subject to the timing requirements of Section 4.4, shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option, with a Fair Market Value (as defined in the Plan) on the date of Option exercise equal to the aggregate purchase price of the shares with respect to which such Option or a portion thereof is exercised; or
(iiiii) surrender With the consent of the Committee, a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of that number of fully paid and non-assessable shares of Common Stock owned credit is prohibited by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise pricelaw; or
(iiiiv) delivery of notice of a "net value" exercise which reduces With the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes consent of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that Committee, any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or a portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Committee, (i) shares of the Company's Common Stock owned by the Optionee duly endorsed for transfer, or (ii) subject to the timing requirements of Section 4.4, shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option, valued at the Fair Market Value on the date the Option is exercised, may be used to make all or part of such payment; and
(e) In the event the Option or a portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
. Such notice shall be substantially in the form attached as Exhibit A (b) At or such other form as is prescribed by the discretion of the Employee:Committee); and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender With the consent of the Committee, such payment may be made, in whole or in part, through the delivery of shares of Stock which have been owned by the Optionee for at least six months, duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is shares of Stock then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option. With the consent of the Committee, (i) shares of Stock owned by the Optionee for at least six months duly endorsed for transfer or (ii) shares of Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The An Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of or his office or the Company of Company’s agent, if so directed, all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Employee Executive or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender Committee and made available to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value Executive (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon or such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option);
(b) Full payment (i) in cash, (ii) electronic transfer, (iii) by way of a cashless exercise with a broker as approved by the Company, (iv) by withholding in Shares to be issued upon exercise of the Option, if this method of exercise is approved by the Committee in its sole discretion; (iv) by way of a surrender of Shares previously-owned by the Executive to the Company, (v) by check, if the Company, in its sole discretion allows this method of payment, (vi) or by a combination thereof) of the Exercise Price for such Option or portion will indemnify thereof that is exercised, provided the Company against Shares surrendered or withheld have a Fair Market Value (determined as of the day preceding the date of exercise) that is not less than such Exercise Price or part thereof and hold it free and harmless from any loss, damage, expense or liability resulting Tax-Related Items (as defined in (d) below);
(c) Full payment to the Company if any sale of all Tax-Related Items which, under federal, state, local or distribution foreign law, it is required to withhold upon exercise of the shares Option;
(d) In a case where the Company is obliged to (or would suffer a disadvantage if it were not to) account for any Tax-Related Items (in any jurisdiction) for which the Executive is liable by such person is contrary virtue of the Executive’s participation in the Plan that are legally applicable to the representation and agreement referred to above. The Committee mayExecutive or deemed by the Company, in its absolute discretion, take whatever additional actions it deems to be an appropriate charge to ensure the observance and performance of such representation and agreement and Executive, the Executive agrees to effect compliance with make adequate arrangements satisfactory to the Act and any other federal Company, or state securities laws its respective agents, to satisfy all Tax-Related Items by electing one or regulations. Without limiting the generality a combination of the foregoing, following: (i) withholding from the Committee may require an opinion of counsel acceptable to it Executive’s wages or other cash compensation paid to the effect that any subsequent transfer Executive by the Company; (ii) withholding from proceeds of the shares acquired sale of Shares issued upon the exercise of the Option does not violate either through a voluntary sale or through a mandatory sale arranged by the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock Company (on the Executive’s behalf pursuant to this authorization without further consent); (iii) withholding in Shares to be issued upon the exercise of the Option shall bear an appropriate legend referring Option, if this method of exercise is approved by the Committee, in its sole discretion; (iv) by way of surrender of Shares previously-owned by the Executive to the provisions Company; or (v) by the Executive’s payment of this Section 4.3(c) the Tax-Related Items by cash, electronic transfer or by check if the Company, in its sole discretion, allows the Executive to pay any Tax-Related Items by check. Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Executive will receive a refund of any over-withheld amount in cash and will have no entitlement to the agreements herein and thereinShare equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Executive is deemed to have been issued the full number of Shares subject to the exercised Option, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items. Finally, the Executive agrees to pay to the Company any amount of Tax-Related Items that the Company may be required to withhold or account for as a result of the Executive’s participation in the Plan that cannot be satisfied by the means previously described. The written representation and agreement referred Company may refuse to in issue or deliver the first sentence Shares or the proceeds of this Section 4.3(c) shallthe sale of Shares, however, not be required if the shares Executive fails to be issued pursuant to such exercise have been registered under comply with his obligations in connection with the Act and such registration is then effective in respect of such shares.Tax-Related Items; and
(de) In the event the Option or any portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeExecutive, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee may, prior to exercise, require an opinion of counsel reasonably acceptable to it to the effect that any subsequent transfer of Shares acquired on exercise of an Option (other than a transfer through a sale of the Shares on the principal stock exchange or electronic trading system on which such Shares are then traded) does not violate the Exchange Act and may issue stop‑transfer orders in the United States covering such Shares.
Appears in 1 contract
Sources: Time Based Share Option Award Agreement (Willis Group Holdings PLC)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company (or any third party administrator or other person or entity designated by the Company) of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:becomes unexercisable under Section 2(b):
(i) delivery of full payment (in cash An Exercise Notice signed or electronically accepted by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares you or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify thereof, stating that the Option or portion thereof is thereby exercised, such notice in such form as is prescribed by the Committee and complying with all applicable rules established by the Committee; and
(ii) Subject to Section 5.2(d) of the Plan, the receipt by the Company against and hold it free and harmless from any lossof full payment for the shares of Common Stock with respect to which the Option or portion thereof is exercised, damagewhich may be in one of the following forms of consideration:
(A) By cash or check payable to the Company; or
(B) With the consent of the Committee, expense by delivery of shares of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or liability resulting exercised portion thereof; or
(C) With the consent of the Committee such payment may be made, in whole or in part, through the delivery of shares of Common Stock owned by you, duly endorsed for transfer to the Company if any sale or distribution with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof and held by you for such period of time (if any) as may be necessary to avoid adverse accounting consequences; or
(D) Through the delivery of a notice that you have placed a market sell order with a broker with respect to shares by such person is contrary of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the representation Company in satisfaction of the Option exercise price; provided, that payment of such proceeds is made to the Company upon settlement of such sale; or
(E) With the consent of the Committee, through the delivery of property of any kind which constitutes good and agreement referred valuable consideration; or
(F) Subject to above. The Committee mayany applicable laws, any combination of the consideration provided in the foregoing paragraphs (A) through (E); and
(iii) Such representations and documents as the Committee, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Committee or Board may, the Committee may require an opinion of counsel acceptable in its absolute discretion, also take whatever additional actions it deems appropriate to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act such compliance including, without limitation, placing legends on share certificates and may issue book entries and issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon notices to agents and registrars; and
(iv) The receipt by the exercise Company of payment of any applicable withholding tax, which may be in the form of consideration permitted under Section 3(b)(ii), subject to Section 3(d) below and Section 10.4 of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.Plan; and
(dv) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Employeeyou, appropriate proof of the right of such person or persons to exercise the Option. Notwithstanding any of the foregoing, the Committee shall have the right to specify all conditions of the manner of exercise, which conditions may vary by country and which may be subject to change from time to time.
Appears in 1 contract
Manner of Exercise. The Option, or any Any exercisable portion thereof, of the Option may be exercised solely by delivery delivering to the Office of the Secretary of the Company of at the Company’s principal office, all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice notice in writing signed by the Employee Optionee or the other person Person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee; provided, that such rules do not impose any substantive requirements on the Optionee which are inconsistent with the terms of this Agreement or the Plan;
(b) At the discretion full payment of the Employee:
aggregate Option Price for the Shares with respect to which such Option or portion thereof is exercised (i) delivery of full payment (in cash (by check or by checkwire transfer or a combination of the foregoing), (ii) a “net exercise” method whereby the Option Price for the shares Shares being exercised is satisfied by the Company withholding from the Shares otherwise issuable to the Optionee, that number of Shares having an aggregate Fair Market Value, determined as of the date of exercise, equal to the product of (x) the Option Price and (y) the number of Shares with respect to which the Option is being exercised, or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes any combination of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (methods, as reported elected by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).Optionee;
(c) A a bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person Person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock Shares are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunderSecurities Act; provided, and however, that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations;
(d) full payment to the Company or any of its Affiliates, as applicable, of all amounts which, under federal, state, local and/or non-U.S. law, such entity is required to withhold upon exercise of the Option; provided, that, at the Optionee’s election, such withholding obligation may be satisfied by the Company withholding from the Shares otherwise issuable to the Optionee that number of Shares having an aggregate Fair Market Value, determined as of the date the withholding tax obligation arises, equal to such withholding tax obligation (but in no event more than the minimum required tax withholding); provided, further, that, the Optionee’s right to elect such share withholding shall be subject to any limitations imposed under Delaware law or other Applicable Law and/or under the terms of any preferred stock, debt financing arrangements or other indebtedness of the Company or its Subsidiaries (including any such limitations resulting from the Company’s Subsidiaries being prohibited or prevented from distributing to the Company sufficient proceeds or funds to enable the Company to repurchase Common Stock in accordance with Delaware law or other Applicable Law and/or the then applicable terms and conditions of such arrangements); and
(e) in the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any Person or Persons other than the Optionee, appropriate proof of the right of such Person or Persons to exercise the Option. Without limiting the generality of the foregoing, any subsequent transfer of Shares shall be subject to the terms and conditions of the Sponsor Stockholders Agreement and the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and thereinSecurities Act. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) above shall, however, not be required if the shares subsequent transfer of the Shares to be issued pursuant to such exercise have has been registered under the Act Securities Act, and such registration is then effective in respect of such sharesShares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Holder or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in the form attached as Exhibit C to the Grant Notice (or such other form as is prescribed by the Administrator); and
(b) At the discretion Subject to Section 6.2(d) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on Holder for at least six (6) months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that ▇▇▇▇▇▇ has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the shares of Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the CommitteeAdministrator, signed by Holder or the Employee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Holder’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Holder or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.Securities Act,
Appears in 1 contract
Sources: Stock Option Agreement (Leap Wireless International Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeBoard;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by checkcash) for the shares with respect to which the such Option or portion is exercised; or;
(ii) surrender Payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on then issuable upon exercise of the Fair Market Value (as Option, and that term is defined the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Plan) equal to applicable Option exercise price, provided that payment of -------- such proceeds is then made to the Company upon settlement of such sale; or
(iii) delivery of notice of a "net value" exercise which reduces With the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes consent of the foregoing formula: A = the total number Board, any other form of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported consideration permitted by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).Plan;
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeBoard, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Board may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Board may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.;
(d) Full payment to the Company of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option, which, with the consent of the Board, may be in the form of consideration used by the Optionee to pay for such shares under Section 4.3(b); and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Varco International Inc /De/)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice This Warrant is exercisable, in writing signed whole or in part, at the Purchase Price payable in cash or by wire, cashier's check or other good funds payable to the Employee or order of the other person then Company. Upon surrender of the Warrant together with payment of the Purchase Price for the Warrant Stock purchased (and any applicable transfer taxes) to the Company, and delivery of the purchase form attached hereto, the Purchaser shall be entitled to exercise receive a certificate or certificates for the OptionWarrant Stock so purchased with any appropriate private placement or other legends thereon, stating that the Option or together with a new Warrant for any portion thereof is thereby of this Warrant not exercised, such notice complying with all applicable rules established by the Committee;.
(b) At With the discretion approval of the Employee:
Board, which approval shall not be unreasonably withheld, the Purchaser may elect to (i) delivery pay all or part of full the Purchase Price with securities of the Company (including the unexercised portion of this Warrant) outstanding prior to the exercise of this Warrant, with such securities to be credited toward such purchase price at the fair market value of the securities, in which event the certificates evidencing the securities delivered shall accompany the notice of exercise and shall be duly endorsed or accompanied by duly executed stock powers to transfer the same to the Company; provided, however, that such payment (in securities instead of cash or check shall not be effective and shall be rejected by check) for the shares with respect to which Company if the Option Company is then prohibited by applicable law from purchasing or portion is exercised; or
acquiring the tendered securities, or (ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes accept payment of the foregoing formula: A = the total number fair market value of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) all or part of the Common Warrant Stock on the trading date immediately preceding the date net of the applicable exercise of this Option; and C = Purchase Price for such Warrant Stock in consideration for the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) cancellation of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 corresponding portion of the Exchange Actrights of Purchaser under this Warrant.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of or his or her designee all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeCompany;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by checkcheck or by a combination thereof) for the shares Shares with respect to which the such Option or portion thereof is exercised (provided, however, that full payment is deemed made if the Company receives cash in respect of the exercise price no later than the date on which the Company or its agent delivers or releases Shares to the Optionee or his or her agent, which date shall not be later than two (2) business days following the date on which the Option is exercised; or
, in the event of a cashless exercise via a third party in a manner that is compliant with applicable law) or (ii) surrender notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value this subsection (as that term is defined in the Plan) equal to applicable exercise price; orb);
(iiii) delivery of notice of Full payment (in cash or by check or by a "net value" exercise which reduces combination thereof) to satisfy the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares minimum withholding tax obligation with respect to which this such Option or portion thereof is then being exercised; B = exercised (provided, however, that full payment is deemed made if the last reported sale price (as reported by Company receives such payment no later than the principal national securities exchange date on which the Common Stock Company must remit such withholding to the Internal Revenue Service in the event of a cashless exercise via a third party in a manner that is then tradedcompliant with applicable law); (ii) notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of this subsection (c); or (iii) notice in writing to the Common Stock Company at least ten (10) days (or such shorter period approved by the Committee) prior to date of exercise that the Optionee elects to pay the withholding tax obligation with previously owned Shares and, subject to all applicable rules established by the Committee, the delivery (or deemed delivery, as allowed by the Committee) on the trading date immediately preceding or prior to the date of the applicable exercise of this Optionsuch Shares having a Fair Market Value equal to the withholding amount; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(cd) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares Shares of Common Stock are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act Act, and may issue stop-transfer orders covering such sharesShares. Share certificates evidencing Common Stock stock issued upon the on exercise of the Option shall may bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a notice in writing to the event Company includes notice in writing to a third party engaged by the Option Company to provide administrative services under the Plan and also includes notice via electronic or portion telephone enabled systems pursuant to approved procedures, and a notice is considered signed if it is signed electronically in accordance with approved procedures and such electronic signature will have the same force and effect as a manual signature. Notwithstanding the above, the Committee may approve alternative procedures for exercise and alternative procedures for payment of the related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of exercise. No alternative procedure for exercise shall be exercised pursuant to Section 4.1 by any person or persons other than effective unless the Employee, appropriate proof of the right of such person or persons to Optionee completes all actions required for exercise the Optionand payment.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 2.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Committee stating that the discretion of the Employee:
(i) delivery of full payment (in cash Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Director or other person then entitled to exercise the Option or such portion will indemnify of the Option;
(b) Full cash payment to the Secretary of the Company against for the shares with respect to which the Option, or portion thereof, is exercised. However, the Committee may in its sole and hold it free and harmless absolute discretion (i) allow a delay in payment up to thirty (30) days from any lossthe date the Option, damageor portion thereof, expense is exercised; (ii) allow payment, in whole or liability resulting in part, through the delivery of shares of Common Stock which have been owned by the Director for at least six months, duly endorsed for transfer to the Company if any sale or distribution with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; (iii) allow payment, in whole or in part, through the surrender of shares by such person is contrary of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of Option exercise equal to the representation aggregate exercise price of the Option or exercised portion thereof; (iv) allow payment, in whole or in part, through the delivery of a notice that the Director has placed a market sell order with a broker with respect to shares of Common Stock then issuable upon exercise of the Option, and agreement referred that the broker has been directed to above. The Committee maypay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided that payment of such proceeds is then made to the Company upon settlement of such sale; or (v) allow payment through any combination of the consideration provided in the foregoing subparagraphs (ii), (iii) and (iv);
(c) Such representations and documents as the Committee, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Committee may, the Committee may require an opinion of counsel acceptable in its absolute discretion, also take whatever additional actions it deems appropriate to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act such compliance including, without limitation, placing legends on share certificates and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeDirector, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Cherokee Inc)
Manner of Exercise. The 4.1 To exercise any part of the Option, the Participant (or any exercisable portion thereofin the case of exercise after the Participant’s death or Disability, the applicable representative of the estate of the Participant (such as the Participant’s executor, administrator, heir or legatee, as the case may be) or the Participant’s duly appointed representative) must deliver to the Company an executed stock option exercise agreement in the form as may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed approved by the Employee Committee from time to time (the “Exercise Agreement”), which shall set forth, inter alia, (i) the Participant’s (or the other person then entitled Participant’s applicable representative) election to exercise the all or part of the Option, stating that (ii) the number of Option Shares being purchased, (iii) any restrictions imposed on the Option Shares, (iv) any representations, warranties and agreements regarding the Participant’s (or a portion thereof the Participant’s applicable representative) investment intent and access to information as may be required by the Company to comply with applicable securities laws and (v) whether the Shares shall be certificated or held in book-form. If someone other than the Participant exercises all or part of the Option, then such person must submit documentation reasonably acceptable to the Company verifying that such person has the legal right to exercise all or part of the Option. All or part of the Option may not be exercised unless all necessary regulatory approvals have been obtained (if relevant), all relevant documentation has been submitted to the Company and duly executed, where relevant and such exercise is thereby exercised, such notice complying in compliance with all applicable rules established securities laws and all regulatory and other applicable laws of the Cayman Islands or any other relevant jurisdiction, as they are in effect on the date of exercise.
4.2 The Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Option Shares being purchased, which may be made by the following payment methods: (1) in immediately available funds in U.S. dollars, or by certified or bank cashier’s check; (2) by delivery of Shares having a value equal to the Exercise Price for the number of Shares being purchased; (3) by a broker-assisted cashless exercise in accordance with procedures approved by the Committee;
(b) At the discretion , whereby payment of the Employee:
Option exercise price or tax withholding obligations may be satisfied, in whole or in part, with Shares subject to the Option by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate exercise price and, if applicable, the amount necessary to satisfy the Company’s withholding obligations; or (4) by delivery of a notice of “net exercise” to the Company, pursuant to which the Participant shall receive (i) delivery the number of full payment (in cash or by check) for the shares with respect to which Shares underlying the Option or portion is so exercised; or
, reduced by (ii) surrender to the Company of that number of fully paid and non-assessable shares Shares equal to (A) the aggregate Exercise Price of Common Stock owned the Option for the number of Shares being purchased divided by Employee based on (B) the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect exercise).
4.3 Additionally, at the time of exercise, the Participant shall pay to the Company such exerciseamount as the Company deems necessary to satisfy its obligation to withhold any applicable income or other taxes incurred by reason of the exercise of all or part of the Option granted hereunder. It is specifically intended that The Participant may satisfy any such tax withholding obligation relating to the exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) or acquisition of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided Option Shares by Rule 16b-3 any of the Exchange Act.
following means (ivin addition to the Company’s right to withhold or to direct the withholding from any compensation paid to the Participant by the Company or by an Affiliate) delivery of or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the consideration provided in Company to withhold Shares from the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory Shares otherwise issuable to the Committee, signed by Participant as a result of the Employee exercise or other person then entitled to exercise such acquisition of Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment Shares hereunder (and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting payment therefor) subject to the Company if any sale or distribution terms of Section 16 of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesPlan.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. (a) The Stock Option is exercisable by delivery of a written or electronic exercise notice in a form authorized by the Company or in a manner and pursuant to such procedures as the Administrator may determine, which will state the election to exercise the Stock Option, or any exercisable portion thereofthe number of Option Shares in respect of which the Stock Option is being exercised, and such other representations and agreements as may be exercised solely required by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed the Plan. The exercise notice will be completed by the Employee Optionee and delivered to the Company. Payment of the Option Exercise Price for the Option Shares may be made by one or more of the following methods: (i) in cash, by certified or bank check or other person then entitled instrument acceptable to the Administrator; (ii) by the Optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the OptionCompany cash or a check payable and acceptable to the Company to pay the Option Exercise Price, stating provided that in the event the Optionee chooses to pay the Option Exercise Price as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Administrator shall prescribe as a condition of such payment procedure; (iii) if permitted by the Administrator, by a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price; or (iv) a combination of (i), (ii) and (iii) above. Payment instruments will be received subject to collection. The transfer to the Optionee on the records of the Company or of the transfer agent of the Option Shares will be contingent upon (i) the Company’s receipt from the Optionee of the full Option Exercise Price for the Option Shares, as set forth above, together with any Tax-Related Items (as defined in ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇), (▇▇) the fulfillment of any other requirements contained herein or in the Plan or in any other agreement or provision of laws, and (iii) the receipt by the Company of any agreement, statement or other evidence that the Option or a portion thereof is thereby exercised, such notice complying Company may require to satisfy itself that the issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any subsequent resale of the shares of Stock will be in compliance with all applicable rules established by the Committee;laws and regulations.
(b) At The shares of Stock purchased upon exercise of this Stock Option shall be transferred to the discretion Optionee on the records of the Employee:
(i) delivery Company or of full payment (the transfer agent upon compliance to the satisfaction of the Administrator with all requirements under applicable laws or regulations in cash connection with such transfer and with the requirements hereof and of the Plan. The determination of the Administrator as to such compliance shall be final and binding on the Optionee. The Optionee shall not be deemed to be the holder of, or by check) for to have any of the rights of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this Stock Option shall have been exercised pursuant to the terms hereof, the Company or the transfer agent shall have transferred the shares to the Optionee, and the Optionee’s name shall have been entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to which the Option or portion is exercised; orsuch shares of Stock.
(iic) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total The minimum number of shares with respect to which this Stock Option may be exercised at any one time shall be 100 shares, unless the number of shares with respect to which this Stock Option is then being exercised; B = exercised is the last reported sale price (as reported by the principal national securities exchange on which the Common total number of shares subject to exercise under this Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect Option at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharestime.
(d) In Notwithstanding any other provision hereof or of the event the Plan, no portion of this Stock Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than exercisable after the Employee, appropriate proof of the right of such person or persons to exercise the OptionExpiration Date hereof.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Brightcove Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, Committee stating that the shares of Common Stock are being acquired for the Employee's own accountOption, for investment and without any present intention of distributing or reselling said shares or any of them except as may a portion thereof, is exercised. The notice shall be permitted under the Act and then applicable rules and regulations thereunder, and that signed by the Employee or other person then entitled to exercise the Option or portion will indemnify such portion; and
(i) Full cash payment to the Secretary of the Company against for the shares with respect to which such Option or portion is exercised; or
(ii) With the consent of the Committee, (A) shares of the Company's Common Stock owned for at least six months by the Employee, duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof, or (B) shares of the Company's Common Stock issuable to the Employee upon exercise of the Option, with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse promissory note bearing interest (at no less than a market rate of interest which then precludes the imputation of interest under the Code or successor provision) and hold it free payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and harmless the security to be given for such note. The Option may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; or
(iv) With the consent of the Committee, property of any losskind which constitutes good and valuable consideration; or
(v) With the consent of the Committee, damagea notice that the Employee has placed a market sell order with a broker with respect to shares of the Company's Common Stock then issuable upon exercise of the Option, expense or liability resulting and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company if any sale or distribution in satisfaction of the shares by such person is contrary Option exercise price; or
(vi) With the consent of the Committee, any combination of the consideration provided in the foregoing subparagraphs (i), (ii), (iii), (iv) and (v); and
(c) Full payment to the representation and agreement referred Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure withhold upon exercise of the observance and performance of such representation and agreement and to effect compliance Option; with the Act and any other federal or state securities laws or regulations. Without limiting the generality consent of the foregoingCommittee, (i) shares of the Committee may require an opinion of counsel acceptable to it Company's Common Stock owned by the Employee for at least six months, duly endorsed for transfer, with a Fair Market Value equal to the effect that any subsequent transfer sums required to be withheld, or (ii) shares of the shares acquired Company's Common Stock issuable to the Employee upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring with a Fair Market Value equal to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be sums required if the shares to be issued pursuant withheld, may be used to such exercise have been registered under the Act and such registration is then effective in respect make all or part of such shares.payment; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Tegal Corp /De/)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary's office of all of Exhibits to Grant Notice to Non-Employee Directors the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Holder or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in the form attached as Exhibit C to the Grant Notice (or such other form as is prescribed by the Administrator); and
(b) At the discretion Subject to Section 6.2(d) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on Holder for at least six (6) months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that ▇▇▇▇▇▇ has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the shares of Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the CommitteeAdministrator, signed by Holder or the Employee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the EmployeeHolder's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Holder or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the Exhibits to Grant Notice to Non-Employee Directors provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which in the discretion of the Administrator may be in the form of consideration used by Holder to pay for such shares under Section 4.3(b), subject to Section 10.4 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeHolder, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Leap Wireless International Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
Board. Such notice shall be substantially in the form attached as Attachment III to the Grant Notice (b) At or such other form as is prescribed by the discretion of the Employee:Board); and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender to With the Company consent of that number the Board, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this shares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided, that payment of such proceeds is then being exercised; B = made to the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time Company upon settlement of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Board, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the CommitteeBoard, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Board may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Board may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option. With the consent of the Board, (i) shares of Common Stock owned by the Optionee for at least six months duly endorsed for transfer or (ii) shares of Common Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Corporate Secretary of Holdings (the Company of "Secretary") or his office all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 2.2:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:Full payment by;
(i) delivery tender to Holdings of cash for the full payment (in cash or by check) for purchase price of the shares with respect to which such Option or portion thereof is exercised; (ii) The unsecured, demand borrowing by Optionee from Holdings on an open account maintained solely for this purpose in the amount of the full exercise price together with the instruction from Optionee to sell the shares exercised on the open market through a duly registered broker-dealer with which Holdings makes an arrangement for the sale of such shares under the Plan. This method is known as the "broker-dealer exercise method" and is subject to the terms and conditions set forth herein, in the Plan and in guidelines established by the Committee. The option shall be deemed to be exercised simultaneously with the sale of the shares by the broker-dealer. If the shares purchased upon the exercise of an Option or a portion thereof cannot be sold for a price equal to or greater than the full exercise price plus direct costs of the sales, then there is no exercise of the Option. Election of this method authorizes Holdings to deliver shares to the broker-dealer and authorizes the broker-dealer to sell said shares on the open market. The broker-dealer will remi▇ proceeds of the sale to Holdings which will remit net proceeds of the sale to Holdings which will remit net proceeds to Optionee after repayment of the borrowing, deduction of costs, if any, and withholding of taxes. Optionee's borrowing from Holdings on an open account shall be a personal obligation of Optionee which shall bear interest at the published Applicable Federal Rate (AFR) for short-term loans and shall be payable upon demand by Holdings. Such borrowing may be authorized by telephone or other telecommunications acceptable to Holdings. Upon such borrowing and the exercise of the Option or portion is exercised; or
(ii) surrender thereof, title to the Company shares shall pass to the Optionee whose election hereunder shall constitute instruction to Holdings to register the shares in the name of the broker-dealer or its nominee. Holdings reserves the right to discontinue this broker-dealer exercise method at any time for any reason whatsoever. Optionee agrees that number of fully paid and nonif this broker-assessable shares of Common Stock owned by Employee based dealer exercise method under this Paragraph 3.3 (b)(ii) hereof is used, Optionee promises unconditionally to pay Holdings the full balance in his open account at any time upon demand. Optionee also agrees to pay interest on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect account balance at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "AFR for short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), term loans from and 4.3(b)(ii)after demand.
(c) A bona fide written representation and agreement in a form satisfactory Full payment to the CommitteeHoldings of all amounts which, signed by the Employee under federal, state or other person then entitled local law, it is required to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired withhold upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.Option; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
(e) This Option shall not be exercisable prior to six months after the Date of Grant.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (RJR Nabisco Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may Each exercise of this Option shall be exercised solely by delivery means of a written notice of exercise delivered to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionCompany, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces specifying the number of shares to be received upon such purchased, the exercise price of the options being exercised and accompanied by payment to the Company (x) of the full purchase price of the shares to be purchased (i) in cash or by certified, cashier's or (as funds clear) personal check payable to the order of the Company, or (ii) by delivery of shares of Common Stock of the Company which have been owned by the Optionee for over six months and which are in the possession of the Optionee, or a combination thereof, and (y) of any required withholding taxes (as contemplated by Section 6 hereof) in cash or by certified, cashier's or (as funds clear) personal check payable to the order of the Company. Payment of the exercise price may also be made by delivering (i) a properly executed exercise notice instructing the Company to deliver the shares being purchased to a "Net Number" of shares determined according broker, subject to the following formula: Net Number = broker's delivery of cash to the Company equal to the exercise price plus any applicable tax withholding amount, (A x ii) irrevocable instructions to the broker to promptly deliver to the Company such amounts, and (B - C))/B. For purposes iii) such other documentation as the Company and the broker shall request. This Option may not be exercised for a fraction of the foregoing formula: A = a share and no partial exercise of this Option may be for less than (i) one hundred (100) shares or (ii) the total number of shares with respect to which this then eligible for exercise, if less than one hundred (100) shares. This Option is then being exercised; B = may be exercised (i) during the last reported sale price (as reported lifetime of the Optionee only by the principal national securities exchange on which Optionee; (ii) to the Common Stock is then tradedextent permitted by the Committee or by the terms of this Agreement, Optionee's spouse if such spouse obtained the Option pursuant to a qualified domestic relations order as defined by the Code or Title I of ERISA, or the rules thereunder ("Qualified Domestic Relations Order"); and (iii) after the Optionee's death by his or her transferees by will or the laws of descent or distribution, and not otherwise, regardless of any community property interest therein of the Common Stock on the trading date immediately preceding the date spouse of the applicable exercise Optionee, or such spouse's successors in interest. If the spouse of the Optionee shall have acquired a community property interest in this Option; and C = , the exercise price then Optionee, or the Optionee's permitted successors in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934interest, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution on behalf of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality spouse of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering Optionee or such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to spouse's successors in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesinterest.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Hollywood Park Inc/New/)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing A written notice complying with the applicable rules established by the Committee stating that the Option, or a portion thereof, is exercised. The notice shall be signed by the Employee Optionee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;portion; and
(b) At Full cash payment to the discretion Secretary of the Employee:
(i) delivery of full payment (in cash or by check) Company for the shares with respect to which the such Option or portion is exercised; or
(iii) surrender to With the Company consent of that number of fully paid and non-assessable the Committee, (A) shares of the Company's Common Stock owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company, with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise price of the Option or exercised portion thereof, or (B) shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option, with a Fair Market Value on the date of exercise of the Option or any portion thereof equal to the aggregate exercise price of the Option or exercised portion thereof; or
(ii) With the consent of the Committee, a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; or
(iii) With the consent of the Committee, property of any kind which constitutes good and valuable consideration; or
(iv) With the consent of the Committee, a notice that the Optionee has placed a market sell order with a broker with respect to shares of the Company's Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; or
(iiiv) delivery of notice of a "net value" exercise which reduces With the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes consent of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that Committee, any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii), (iii), and 4.3(b)(ii(iv).; and
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute sole discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Committee, (i) shares of the Company's Common Stock owned by the Optionee, duly endorsed for transfer, with a Fair Market Value on the date of delivery equal to the sums required to be withheld, or (ii) shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option with a Fair Market Value on the date of exercise of the Option or any portion thereof equal to the sums required to be withheld, may be used to make all or part of such payment; PROVIDED, that the number of shares of Common Stock which may be withheld with respect to the issuance, vesting, exercise or payment of any Option (or which may be repurchased from the Optionee of such Option within six months after such shares of Common Stock were acquired by the Optionee from the Company) in order to satisfy the Optionee's federal and state income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of the Option shall be limited to the number of shares which have a Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal and state tax income and payroll tax purposes that are applicable to such supplemental taxable income; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Incentive Stock Option Agreement (Price Legacy Corp)
Manner of Exercise. The Option, or any exercisable vested portion thereof, of this Option (“Vested Portion”) may be exercised solely from time to time, in whole or in part, but not as to less than 1,000 shares of Stock (unless the remaining shares then constituting the Vested Portion of this Option is less than 1,000 shares of Stock) at any time, by delivery to the Secretary Company at its principal office of a stock option exercise agreement (the Company of all of “Exercise Agreement”) substantially in the following prior to form attached hereto (the time when “Form”), which need not be the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Optionsame for each Participant, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares Shares being purchased, the restrictions imposed on the Shares purchased under such Exercise Agreement, if any, and such representations and agreements regarding the Participant’s investment intent and access to information and other matters, if any, as may be received upon such exercise required or desirable by the Company to a "Net Number" of shares determined according comply with applicable securities laws. The Form must be duly executed by Participant and be accompanied by payment in cash, or by check payable to the following formula: Net Number = (A x (B - C))/B. For purposes of Company, in full for the foregoing formula: A = Exercise Price for the total number of shares with respect to which this Option is then Shares being exercised; B = purchased. Alternatively, but only if the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect Company authorizes at the time of such exercise. It exercise at its sole discretion, and where permitted by law (i) by surrender of shares of Stock of the Company that have been owned by the Participant for more than six (6) months or lesser period if the surrender of Shares is specifically intended that any such exercise contemplated hereunder be otherwise exempt from the "short-swing profit" rule of Section 16(b) 16 of the Securities Exchange Act of 1934, as amended (the "“Exchange Act")”) and if such shares were purchased from the Company by use of a promissory note, as provided such note has been fully paid with respect to such shares, (ii) by Rule 16b-3 forfeiture of Shares equal to the value of the Exchange Act.
exercise price pursuant to the so called “immaculate cashless exercise ", (iii) by broker sale by following the required instructions therefore including as so authorized by the Company and its sole discretion instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds necessary to pay the exercise price and the amount of any required tax or other withholding obligations, or (iv) delivery of a by any combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares methods of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares payment or any other consideration or method of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharespayment.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Flux Power Holdings, Inc.)
Manner of Exercise. The You may exercise this Option only it has not been forfeited or has not otherwise expired, and only to the extent this Option has vested. To exercise this Option, you must complete the Notice of Stock Option Exercise in the form attached hereto as Exhibit A (the “Notice of Stock Option Exercise”) and return it to the address indicated on that form. The Notice of Stock Option Exercise will become effective upon its receipt by the Company. If your beneficiary or any exercisable portion thereofheir, or such other person or persons as may acquire your rights under this Option by will or by the laws of descent and distribution, wishes to exercise this Option after your death, such person must contact the Company and prove to the Company’s satisfaction that such person has the right and is entitled to exercise this Option. Your ability to exercise this Option may be exercised solely restricted by delivery to the Secretary Company if required by applicable law. To exercise this Option, your Notice of Stock Option Exercise must be accompanied by payment of the Company of all exercise price through any of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions modes of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
payment: (i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercisedcash; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise pursuant to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that Regulation T program if the shares of Common Stock are being publicly traded; (iii) by tendering previously acquired shares of Common Stock which have been held for at least six (6) months and which have a Fair Market Value at the time of exercise that is equal to the total exercise price of this Option, if approved by the Board; (iv) through a cashless exercise procedure established by the Committee, if any; or (v) any combination of the modes of payment described in clauses (i)-(iv). Transferability: You may not transfer or assign this Option for any reason, other than as set forth in the Plan. Any attempted transfer or assignment of this Option, other than as set forth in the Plan, will be null and void. Market Stand-Off: In connection with any underwritten public offering by the Company of its equity securities pursuant to an effective registration statement filed under the Securities Act of 1933, as amended (the “Securities Act”), including the Company’s initial public offering, you agree that you shall not directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the Employee's own accountpurchase of, purchase any option or other contract for investment and without any present intention the sale of, or otherwise dispose of distributing or reselling said shares transfer or agree to engage in any of them except the foregoing transactions with respect to, any Shares acquired under this Option without the prior written consent of the Company and the Company’s underwriters. Such restriction shall be in effect for such period of time following the date of the final prospectus for the offering as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify requested by the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to aboveunderwriters. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shallIn no event, however, not be required if the shares to be issued pursuant to shall such exercise have been registered under the Act and such registration is then effective in respect of such sharesperiod exceed one hundred eighty (180) days.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Award Agreement (Imperial Holdings, LLC)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeAdministrator;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash cash, by check or by checka combination thereof) for the shares Shares with respect to which the such Option or portion thereof is exercised; or
, (ii) surrender to the Company extent permitted EAST\146727525.1 9/20/17 020471-000001 by the Administrator in a manner that is compliant with the terms of the Plan, indication that the Optionee elects to have the number of fully paid and non-assessable shares Shares that would otherwise be issued to the Optionee reduced by a number of Common Stock owned by Employee based on the Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to Laureate pursuant to clause (as that term is defined in the Plani) equal to applicable exercise price; or
of this subsection (b), or (iii) delivery of notice of a "net value" broker-assisted cashless exercise which reduces through a brokerage firm designated or approved by the number of shares Administrator;
(i) Full payment (in cash, by check or by a combination thereof) to be received upon such exercise to a "Net Number" of shares determined according to satisfy the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares withholding tax obligation with respect to which this such Option or portion thereof is then being exercised; B = exercised or (ii) to the last reported sale price (as reported extent permitted by the principal national securities exchange on which Administrator in a manner that is compliant with the Common Stock is then traded) terms of the Common Stock Plan, indication that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee upon exercise of such Option (or portion thereof) reduced by a number of Shares having an aggregate Fair Market Value, on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory equal to the Committee, signed payment to satisfy the minimum withholding tax obligation that would otherwise be required to be made by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting Optionee to the Company if any sale or distribution of the shares by such person is contrary pursuant to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions clause (i) of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.subsection (c); and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
(e) At the time the Option is exercised, in whole or in part, or at any time thereafter as requested by the Company, the Optionee hereby authorizes withholding from payroll or any other payment of any kind due to the Optionee and otherwise agrees to make adequate provision for foreign (non-US), federal, state and local taxes required by law to be withheld, if any, which arise in connection with the Option. The Company may require the Optionee to make a cash payment to cover any withholding tax obligation as a condition of exercise of the Option or issuance of Shares upon exercise.
Appears in 1 contract
Manner of Exercise. 1.2.1 The OptionHolder may exercise this Warrant, in whole or in part, upon surrender of this Warrant, with the duly executed exercise notice, in the form attached hereto as Appendix A, to the Company at its corporate office in Minnetonka, Minnesota, and upon payment to the Company of the Exercise Price for each Warrant Share to be purchased in lawful money of the United States, or any exercisable portion thereofby certified or cashier's check, may or wired funds or by cashless exercise as provided in Section 1.3 below.
1.2.2 Upon receipt of this Warrant with the duly executed exercise notice and accompanied by payment of the aggregate Exercise Price for the Warrant Shares for which this Warrant is then being exercised (unless this Warrant is being exercised on a cashless basis as provided in Section 1.3 below), the Company shall cause to be issued and delivered to the Holder, no later than three (3) Business Days after which this Warrant shall have been exercised, certificates for the total number of whole Warrant Shares for which this Warrant is being exercised solely by in such denominations as are required for delivery to the Secretary Holder. If
(1) a certificate representing the Warrant Shares is not delivered to the Holder within five (5) Business Days of the Company due exercise of all of this Warrant by the following Holder and (2) prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed certificate is received by the Employee Holder, the Holder, or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion any third party on behalf of the Employee:
(i) delivery of full payment Holder or for the Holder’s account, purchases (in cash an open market transaction or by checkotherwise) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined to deliver in the Plan) equal to applicable exercise price; or
(iii) delivery of notice satisfaction of a "net value" exercise which reduces sale by the number Holder of shares to be received upon represented by such exercise to certificate (a "Net Number" of shares determined according “Buy-In”), then the Company shall pay in cash to the following formula: Net Number = Holder (A x (B - C))/B. For purposes for costs incurred either directly by such Holder or on behalf of a third party) the amount by which the total purchase price paid for Common Stock as a result of the foregoing formula: A = Buy-In (including brokerage commissions, if any) exceeds the total number proceeds received by such Holder as a result of shares the sale to which such Buy-In relates. The Holder shall provide the Company written notice and reasonable verification indicating the amounts payable to the Holder in respect of the Buy-In.
1.2.3 In case the Holder shall exercise this Warrant with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) less than all of the Common Stock on Warrant Shares that may be purchased under this Warrant, the trading date immediately preceding Company shall execute a new Warrant for the date balance of the applicable Warrant Shares that may be purchased upon exercise of this Option; Warrant and C = deliver such new Warrant to the Holder.
1.2.4 The Company covenants and agrees that it will pay when due and payable any and all taxes which may be payable in respect of the issue of this Warrant, or the issue of any Shares upon the exercise price then of this Warrant. The Company shall not, however, be required to pay any tax which may be payable in effect respect of any transfer involved in the issuance or delivery of this Warrant or of the Warrant Shares in a name other than that of the Holder at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i)surrender, and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to until the Committee, signed by the Employee or other person then entitled to exercise payment of such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify tax the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to issue such exercise have been registered under the Act and such registration is then effective in respect of such sharesWarrant Shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Security Agreement (Ante5, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed Unless determined otherwise by the Employee or Administrator, as a condition to the other person then entitled to exercise of the Option, stating the Optionee shall (i) notify the Company at least 10 days prior to exercise and no earlier than 90 days prior to exercise that the Optionee intends to exercise and (ii) concurrently with the exercise of the Option, execute the Stockholders Agreement, unless the Optionee has already executed the Stockholders Agreement. This Section 2.12 shall not apply if the Shares underlying the Option or are registered on Form S-8. Upon receipt of the Optionee notice to exercise, if the Shares are not publicly traded, the Administrator agrees to provide the Optionee within a portion thereof is thereby exercised, reasonable period of time following receipt of such notice complying with all applicable rules established the amount of income that will be reported to the Internal Revenue Service by the Committee;Company for exercise of such Options.
(b) At Notwithstanding any provision of this Agreement, the discretion Plan or the Stockholders Agreement to the contrary, for any exercise (or deemed exercise), the exercise price for any vested and exercisable portion of the Employee:Option may be paid in the manner described in Section 5(f)(iii) of the Plan without the requirement that the Administrator consent to such manner of exercise, unless such manner of exercise shall at such time be prohibited by any applicable financing agreement, indenture or other similar document to which the Company or any of its subsidiaries is bound and, in this regard, the Company agrees that it will use commercially reasonable efforts to not agree to such a restriction or permit any subsidiary to agree to such restriction unless such restriction is commercially reasonable in light of the contemplated transaction as determined by the Company in its good faith.
(c) Notwithstanding any provision of this Agreement or the Plan to the contrary, (i) delivery prior to an IPO, in the event of full payment (in cash a Termination of Service of the Optionee by the Company or any of its parents or subsidiaries without Cause, a Termination of Service due to Optionee’s Disability, a Termination of Service by check) the Optionee for the shares with respect to which the Option Good Reason or portion is exercised; a Termination of Service as a result of Optionee’s death, or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined following an IPO, in the Planevent the transfer restrictions set forth in Section 4.1(g) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = Stockholders Agreement have not lapsed, the total number of shares Optionee may satisfy his obligations with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then tax withholding in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance connection with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued by surrendering Shares then issuable upon the exercise of the Option shall bear an appropriate legend referring valued at their Fair Market Value on the date of exercise, subject to (x) the provisions Administrator’s good faith determination that the Company, its parents and its subsidiaries possess sufficient liquidity at such time, such that allowing such manner of this Section 4.3(c) and satisfaction of Optionee’s obligations with respect to tax withholding will not have a material negative impact on the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option operations or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof financial position of the right Company and its parents and subsidiaries, and (y) compliance with any applicable financing agreement, indenture or other similar document to which the Company or any of such person or persons to exercise the Optionits subsidiaries is bound.
Appears in 1 contract
Sources: Stock Option Agreement (PPD, Inc.)
Manner of Exercise. The OptionThis Option shall be exercised by delivering to the Company (or its authorized agent), or any exercisable portion thereofduring the period in which such Option is exercisable, (i) a written notice of your intent to purchase a specific number of Shares pursuant to this Option (a "Notice of Exercise"), and (ii) full payment of the Option Price for such specific number of Shares. Payment may be exercised solely made by delivery to the Secretary of the Company of all any one or more of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3means:
(a) Notice in writing signed by the Employee cash or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;personal check; or
(b) At if approved and permitted by the discretion Committee, through the delivery of Shares having a Fair Market Value on the day of exercise equal to such Option Price (the number of Shares may be initially estimated using the Fair Market Value on the last stock trading day preceding the exercise day, with a true-up of any differential effective as of the Employee:
exercise date), which shares either (i) delivery have been owned by you for at least six months ("Mature Shares") or (ii) were purchased by you on the open market. Certificates for Shares shall be properly endorsed with signatures guaranteed (unless such signature guarantee is waived by an officer of full payment (in cash or by check) for the shares with respect to Company), and shall represent Shares which the Option or portion is exercisedare fully paid, non-assessable, and free and clear from all liens and encumbrances; or
(iic) surrender if approved and permitted by the Committee, through the sale of the Shares acquired on exercise of this Option through a broker to whom you have submitted irrevocable instructions to deliver promptly to the Company the amount of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal sale or loan proceeds sufficient to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon pay for such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported Shares, together with, if required by the principal national securities exchange on which Company, the Common Stock is then traded) amount of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time federal, state, local or foreign withholding taxes payable by reason of such exercise. It is specifically intended that any A copy of such exercise contemplated hereunder delivery instructions must also be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting delivered to the Company if any sale or distribution by the Grantee with the Notice of the shares by such person is contrary to the representation and agreement referred to aboveExercise. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear become effective at the time such a Notice of Exercise has been received by the Company, which must be before the tenth anniversary of the Grant Date (the "Expiration Date"). The exercise of this Option as to a number of Shares will result in the cancellation of an appropriate legend referring equal number of LSARs. You will not have any rights as a stockholder of the Company with respect to the provisions Shares deliverable upon exercise of this Section 4.3(c) and the agreements herein and thereinOption until a certificate for such Shares is delivered to you. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event If the Option or portion shall be is exercised pursuant to Section 4.1 as permitted herein by any person or persons other than Grantee, such Notice of Exercise shall be accompanied by such documentation as the EmployeeCompany may reasonably require, appropriate proof including without limitation, evidence of the right authority of such person or persons to exercise the OptionOption and evidence satisfactory to the Company that any death taxes payable with respect to such Shares have been paid or provided for.
Appears in 1 contract
Sources: Non Qualified Stock Option Award Agreement (Janus Capital Group Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, This Warrant may be exercised solely by delivery the holder hereof, in whole or in any part (including as to any fraction of a share), during normal business hours on any Business Day until the Expiration Date by surrender of this Warrant, with the form of Subscription Notice at the end hereof (or a reasonable facsimile thereof) duly executed by such holder, to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionCompany, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
accompanied by: (i) delivery payment of full payment the aggregate Exercise Price for the Common Stock being purchased. Payment of the Exercise Price shall be made, at the option of the holder hereof, either: (A) in cash or by check) for certified or official bank check payable to the shares with respect to which order of the Option Company in the amount of the aggregate Exercise Price (or portion is exercised; or
thereof being paid in this manner), (iiB) by the surrender of indebtedness of the Company (principal and/or interest) in an amount equal to the aggregate Exercise Price (or portion thereof being paid in this manner), (C) by the surrender of Common Stock, including Common Stock obtained upon any previous exercise of this Warrant, having a Market Value (as hereinafter defined) as of the date of exercise equal to the aggregate Exercise Price (or portion thereof being paid in this manner), (D) by the surrender of other warrants of the Company, having a Warrant Value (as hereinafter defined) as of the date of exercise equal to the aggregate Exercise Price (or portion thereof being paid in this manner), or (E) by any combination of the foregoing. In lieu of paying the Exercise Price in the foregoing manner, the holder hereof may, at its option, surrender to the Company all or a specified portion of that this Warrant in exchange for a number of fully paid and non-assessable shares of Common Stock owned determined by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; ordividing
(iii1) delivery the product of notice of a "net value" exercise which reduces (i) the number of shares to be received issuable upon exercise of this Warrant or such specified portion (as the case may be) and (ii) the difference between the Market Value of the Common Stock as of the date of exercise to a "Net Number" of shares determined according to and the following formula: Net Number = Exercise Price, by (A x (B - C))/B. 2) such Market Value. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) foregoing, "Market Value" of the Common Stock on means, as of any date, the trading date reported closing sale price per share of the Common Stock as of the immediately preceding Business Day (provided there is no such reported closing sale price on such Business Day, then the date average of the applicable exercise of this Optionlast-reported bid and ask prices on such Business Day); and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the Warrant Value"Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company Secretary (or any third party administrator or other person or entity designated by the Company) of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice in such form as is prescribed by the Committee and complying with all applicable rules established by the Committee;; and
(b) At the discretion Subject to Section 5.2(d) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender With the consent of the Committee, by delivery of a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable on such terms and conditions as may be approved by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; or
(iii) With the consent of the Committee, by delivery of shares of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of delivery equal to the Company aggregate exercise price of that number the Option or exercised portion thereof; or
(iv) With the consent of fully paid and non-assessable the Committee such payment may be made, in whole or in part, through the delivery of shares of Common Stock owned by Employee based on Optionee, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iiiv) Through the delivery of a notice of that Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the shares of Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Optionprice; and C = the exercise price then in effect at the time provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(ivvi) delivery of a Subject to any applicable laws, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii), (iii), (iv) and 4.3(b)(ii(v).; and
(c) A bona fide written representation Such representations and agreement in a form satisfactory to documents as the Committee, signed by in its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Employee or other person then entitled to exercise such Option or portionSecurities Act of 1933, stating that as amended (the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder“Securities Act”), and that the Employee any other federal or other person then entitled to exercise the Option state securities laws or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to aboveregulations. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which may be in the form of consideration permitted under Section 4.2(b), subject to Section 10.5 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Viasat Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of or the Company of Secretary's office all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 2.5 or Section 3.2:
(a) Notice in writing signed by the Employee Grantee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Company.
(b) At the discretion Full payment of the Employee:
(i) delivery of full payment (Exercise Price in cash or by check) certified bank check for the shares with respect to which the such Option or portion thereof is exercised; exercised or
, if acceptable to the Company, (iii) (A) by surrender or delivery to the Company of that number of fully paid and non-assessable shares of equal to or less than the Exercise Price or (B) in the event the Company registers its Common Stock owned by Employee based on under the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Securities Act of 19341933, as amended (the "Exchange Act"), as provided by Rule 16b-3 registration on form S-8 (or any successor form), through the written election of the Exchange Act.
Grantee to have shares of such Common Stock withheld by the Company from the shares otherwise to be received, with such withheld shares having the aggregate Fair Market Value on the date of exercise equal to or less than the Exercise Price, plus (ivii) delivery of a combination cash or certified check for any difference between the value of the consideration provided in shares so surrendered or withheld and the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).Exercise Price;
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeCompany, signed by the Employee Grantee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock stock are being acquired for the EmployeeGrantee's own account, for investment purposes only and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act Act, and then applicable rules and regulations thereunder, and that the Employee Grantee or other person then entitled to exercise the such Option or portion portions thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or of liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee ; provided, however, that the --------- ------- Company may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations;
(d) Full payment to the Company of all amounts which, under federal, state or local law, it is required to withhold and remit to any taxing authority upon exercise of the Option; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Grantee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee Company may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on exercise of the an Option does not violate the Act Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) above and the agreements herein and thereinherein. The written representation and agreement referred to in subsection (c) and the first sentence of this Section 4.3(c) legend referred to above shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In the event the Option or portion . The Company shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof determine acceptable methods for tendering and withholding Common Stock of the right Company as payment of the Exercise Price upon exercise of an Option and in satisfaction of any withholding obligation and may impose such person or persons limitations and prohibitions on the use of Common Stock of the Company to exercise an Option as it deems appropriate, including without limitation, any limitation or prohibition designed to avoid certain accounting consequences that may result from the Optionuse of Common Stock of the Company as payment of the Exercise Price upon exercise of an Option and in satisfaction of any withholding obligation.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Ashton Technology Group Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
Board. Such notice shall be substantially in the form attached as Exhibit “B” (b) At or such other form as is prescribed by the discretion of the Employee:Board); and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender to With the Company consent of that number the Board, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this shares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided, that payment of such proceeds is then being exercised; B = made to the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time Company upon settlement of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Board, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the CommitteeBoard, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Board may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Board may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option. With the consent of the Board, (i) shares of Common Stock owned by the Optionee for at least six months duly endorsed for transfer or (ii) shares of Common Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary's office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to becomes unexercisable under the provisions of Article 3Plan:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption of portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:; and
(i) delivery of full Full payment (in cash or by check) for the shares Shares with respect to which the such Option or portion is exercised; or
(ii) surrender Shares of any class of the Company's stock owned by the Optionee duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based with a fair market value on the Fair Market Value date of delivery equal to the aggregate Purchase Price of the Shares with respect to which such Option or portion is thereby exercised, or options duly endorsed having an aggregate value (as that term is defined in measured by the Plandifference between fair market value of the Shares and the Purchase Price) equal to applicable exercise pricethe aggregate Purchase Price of the Shares with respect to which such Option or portion thereof is thereby exercised; or
(iii) A promissory note bearing interest (at least such rate as shall then preclude the imputation of interest under the Code or any successor provision) and payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. No option may, however, be exercised by delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to promissory note or by a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt loan from the "short-swing profit" rule Company when or where such loan or other extension of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided credit is prohibited by Rule 16b-3 of the Exchange Act.law; or
(iv) delivery of a Any combination of the consideration provided in the foregoing Sections 4.3(b)(isubsections (i), (ii), and 4.3(b)(ii(iii)., and
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting Full payment to the Company if any sale of all amounts which, under federal, state or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoinglocal law, the Committee may require an opinion of counsel acceptable Company is required to it to the effect that any subsequent transfer of the shares acquired withhold upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.Option; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) Notice in writing A written or electronic notice complying with the applicable rules established by the Committee stating that the Option or portion thereof is thereby exercised. Such notice shall be signed by the Employee Participant or the such other person then entitled to exercise the Option, stating that the Option or a portion thereof that is thereby being exercised, such notice complying with all applicable rules established by the Committee;; and
(b) At the discretion Subject to Sections 9.1 and 9.2 of the Employee:
(i) delivery of Plan, full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercisedexercise, which payment may be made by Participant:
(i) By cash or check made payable to the Company;
(ii) With the consent of the Committee, by requesting that the Company withhold a net number of shares of Stock otherwise issuable upon exercise of the Option having a then current fair market value not exceeding the amount necessary to satisfy the aggregate payments required (and to the extent any tax withholding obligation is to be satisfied pursuant to this clause (ii), the number of shares of Stock withheld by the Company to satisfy such tax withholding obligation shall have a then current fair market value not exceeding the amount necessary to satisfy the tax withholding obligation of the Company and its Subsidiaries based on the minimum applicable statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes);
(iii) With the consent of the Committee, by tendering vested shares of Stock held for such period of time as may be required by the Committee in order to avoid adverse accounting consequences and having a then current fair market value necessary to satisfy the aggregate payments required (and to the extent any tax withholding obligation is to be satisfied pursuant to this clause (iii), the number of vested shares of Stock tendered to satisfy such tax withholding obligation shall have a then current fair market value not exceeding the amount necessary to satisfy the tax withholding obligation of the Company and its Subsidiaries based on the minimum applicable statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes);
(iv) Unless otherwise determined by the Committee, through the delivery of a notice that Participant has placed a market sell order with a broker acceptable to the Company with respect to shares of Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; provided, that payment of such proceeds is made to the Company at such time as may be required by the Committee, but in any event not later than the settlement of such sale;
(v) Other property acceptable to the Committee; or
(iivi) surrender Subject to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to any applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that laws, any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii), (iii), (iv) and 4.3(b)(ii(v).; and
(c) A bona fide written representation Such representations and agreement in a form satisfactory to documents as the Committee, signed by in its sole discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunderany other federal, and that the Employee state or other person then entitled to exercise the Option foreign securities laws or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to aboveregulations. The Committee may, in its absolute sole discretion, also take whatever additional actions it deems appropriate to ensure the observance effect such compliance including, without limitation, placing legends on share certificates and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars;
(d) The receipt by the Company of full payment for any applicable tax withholding obligation in one of the forms of consideration permitted under Section 4.3(b), subject to Section 9.2 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeParticipant, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of all of the following on or prior to the time when the Option or such portion may no longer becomes unexercisable under Section 3.2, and the satisfaction of all of the foregoing shall be exercised pursuant to determined in the provisions discretion of Article 3the Company:
(a) Notice notice in writing signed by the Employee Optionee or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion full payment of the Employee:exercise price applicable to any Option in cash, by check, in Shares (any such Shares valued at Fair Market Value on the date of exercise) that the Optionee has held for at least six months (or such lesser period of time as may be required by the Company’s accountants), through the withholding of Shares (any such Shares valued at Fair Market Value on the date of exercise) otherwise issuable upon the exercise of the Option in a manner that is compliant with applicable law, or a combination of the foregoing methods;
(ic) delivery execution, to the extent not previously executed, of the Stockholder’s Agreement and such other documents and instruments as may be reasonably required by the Committee under the Plan;
(d) full payment to the Company of all amounts which, under federal, state or local law, it (or an Affiliate) is required to withhold upon exercise of the Option, except as otherwise agreed to by the Company under the Plan;
(e) in cash or by check) for the shares with respect to which event the Option or portion is exercisedthereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the option; orand
(iif) surrender to if so requested by the Company Committee, an irrevocable voting proxy and power of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined attorney in the Plan) equal to applicable exercise price; or
(iii) delivery of notice favor of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes designated member of the foregoing formula: A = Board. In addition, following an IPO, the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then tradedOptionee may satisfy his or her obligations under Section 4.3(b) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
and/or (c) A bona fide written representation and agreement in through the sale of Shares (or equity securities into which Shares are convertible) into the public market pursuant to a form satisfactory cashless exercise program that is compliant with applicable law, to the Committeeextent the sale of such Shares (or equity securities, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be applicable) is permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulationsStockholder’s Agreement. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Securities Act of 1933, as amended, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesShares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, All or any exercisable a portion thereof, may of a Substituted Option shall be deemed exercised solely by upon delivery to the Secretary of the Company of all of the following prior to the time when the Director, Stock Option or such portion may no longer be exercised pursuant to the provisions Administration, of Article 3J&J:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Committee stating that the discretion of the Employee:
(i) delivery of full payment (in cash Substituted Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Substituted Option or portion will indemnify such portion;
(b) Such representations and documents as the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee mayCommittee, in its absolute sole discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Committee may, the Committee may require an opinion of counsel acceptable in its sole discretion, also take whatever additional actions it deems appropriate to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act such compliance including, without limitation, placing legends on share certificates and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars;
(dc) In the event that the Substituted Option or portion shall be exercised pursuant to Section 4.1 7.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Substituted Option; and
(d) Full payment to J&J for the shares with respect to which the Substituted Option, or portion thereof, is exercised, which payment shall be (i) in cash, by certified or bank cashier's check; (ii) through the delivery of shares of Common Stock owned by the Optionee, duly endorsed for transfer to J&J with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Substituted Option or exercised portion thereof; (iii) through the surrender of shares of Common Stock then issuable upon exercise of the Substituted Option having a Fair Market Value on the date of exercise of such Substituted Option equal to the aggregate exercise price of the Substitute Option or exercised portion thereof; (iv) through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to shares of Common Stock then issuable upon exercise of the Substituted Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Substituted Option exercise price; or (v) through any combination of the consideration provided in the foregoing subparagraphs (i) through (iv). Notwithstanding the foregoing, the Committee, in its sole discretion, in lieu of or in combination with another method of payment, may allow (i) a delay in payment up to thirty (30) days from the date the Substituted Option, or portion thereof, is exercised; (ii) payment, in whole or in part, through the delivery of property of any kind which constitutes good and valuable consideration; (iii) payment, in whole or in part, through the delivery of a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable upon such terms as may be prescribed by the Committee; or (iv) payment through any combination of the consideration provided in the foregoing subparagraphs (i), (ii) and (iii). In the case of a promissory note, the Committee may also prescribe the form of such note and the security to be given for such note. The Substituted Option may not be exercised, however, by delivery of a promissory note or by a loan from J&J when or where such loan or other extension of credit is prohibited by law.
Appears in 1 contract
Manner of Exercise. The Employee, or Employee’s representative, may exercise any portion of this Option that has become vested under Section 3 by giving notice in a manner approved by the Committee, specifying the election to exercise the Option, or any exercisable portion thereof, may be the number of Shares for which it is being exercised solely by delivery to and the Secretary method of payment for the amount of the Company of all Purchase Price of the following prior to the time when the Shares for which this Option or such portion may no longer is exercised. Such payment shall be exercised pursuant to the provisions of Article 3made:
(a) Notice In United States dollars delivered at the time of exercise; or
(b) If the Committee has established a broker-assisted cashless exercise program, payment may be made all or in writing signed part by delivery (in a manner approved by the Employee Committee) of an irrevocable direction to a securities broker to sell Shares and to deliver all or part of the other sale proceeds to the Corporation in payment of the Purchase Price. The notice shall be provided by the person then entitled or persons exercising this Option, and in the event this Option is being exercised by the representative of Employee, shall be accompanied by proof satisfactory to the Corporation of the right of the representative to exercise the Option. No Share shall be issued until full payment has been made. The Corporation may permit such other payment forms as it deems appropriate (including the surrender of Shares in good form for transfer, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established owned by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which person exercising this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange and having an aggregate fair market value on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of exercise equal to the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"Purchase Price), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i)subject to applicable laws, regulations and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory rules. Notwithstanding anything to the Committeecontrary contained herein, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring be subject to the provisions terms of this Section 4.3(c) the Corporation’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy, and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such no exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Optionpermitted for a fractional share. 8.
Appears in 1 contract
Sources: Stock Option Agreement
Manner of Exercise. The Option, or any exercisable portion thereof, Vested Portion of this Option may be exercised solely from time to time, in whole or in part, by delivery presentation of a Request to Exercise Form, in substantially the form attached hereto (the "Form"), to the Secretary of Company at its principal office, which Form must be duly executed by the Company of all of Optionee and accompanied by payment, subject to any legal restrictions, in the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
form of: (a) Notice in writing signed by cash; (b) check payable to the Employee Company; (c) the surrender of Option Shares equal to the value of the Exercise Price pursuant to a so-called "cashless exercise," which Option Shares so surrendered shall be valued at Fair Market Value as of the date of exercise of the Option for any Vested Portion, less the Exercise Price; (d) a "same day sale" or "margin" commitment from the Optionee and a NASD Dealer or other person then entitled acceptable intermediary whereby the Optionee irrevocably elects to exercise the Option, stating that the Option or and to sell a portion thereof is thereby exercisedof the shares so purchased to pay for the Exercise Price and whereby the NASD Dealer or other acceptable intermediary irrevocably commits to forward the Exercise Price directly to the Company; or (e) any combination of the foregoing, such notice complying with all applicable rules established in the aggregate amount of the Exercise Price, multiplied by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned the Optionee is purchasing at such time, subject to reduction for withholding for tax obligations as provided in Section 14. Upon receipt and acceptance by Employee based on the Fair Market Value (as that term is defined in Company of such Form, accompanied by any payment method specified above, the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares Optionee shall be deemed to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) record owner of the Common Stock on purchased, notwithstanding that the trading date immediately preceding the date stock transfer books of the applicable exercise of Company may then be closed or that certificates representing the Common Stock purchased under this Option; and C = the exercise price Option may not then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory actually delivered to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesOptionee.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Piedmont Mining Company, Inc.)
Manner of Exercise. The OptionSubject to the terms of the Plan, or any exercisable portion thereof, the Option may be exercised solely by delivery (i) delivering to the Secretary of the Company of all of the following Company, prior to the time when expiry of the Option, an option exercise form duly executed by the Optionee or its Legal Representative (the “Option Exercise Form”) substantially in the form of Schedule “A” completed and executed in a manner acceptable to the Company, acting reasonably, or such portion may no longer be exercised (ii) in a manner and pursuant to such procedures as the provisions Board of Article 3:
(a) Notice in writing signed by Directors may determine, which will state the Employee or the other person then entitled election to exercise the Option, stating that Option (with appropriate proof of completion of such exercise procedure) (the “Alternative Exercise Procedure”). The Option Exercise Form or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion completion of the Employee:
Alternative Exercise Procedure (ias applicable) delivery of must be accompanied by payment in full payment (in cash or by check) for the shares with number of Common Shares in respect to of which the Option is being exercised in lawful currency of the United States of America, in cash, bank draft, certified cheque or portion is exercised; or
(ii) surrender other form of payment acceptable to the Company, made payable to the Company at its principal place of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect business at the time of such exercise. It is specifically intended that any such the exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 Option. Payment of the Exchange Act.
(iv) delivery aggregate exercise price will be by any of the following, or a combination thereof, at the election of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
Optionee: (a) cash; (b) cheque; (c) A bona fide written representation and agreement consideration received by the Company under a formal cashless exercise program adopted by the Company in connection with the Plan; or (d) surrender of other Common Shares which have a form satisfactory Fair Market Value Price on the date of surrender equal to the Committeeaggregate exercise price of the exercised Common Shares, signed by provided that accepting such Common Shares, in the Employee or other person then entitled sole discretion of the Board of Directors, will not result in any adverse accounting consequences to the Company. The Optionee may not exercise such the Option or portionunless the tax withholding obligations of the Company, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as its subsidiaries and/or any of its Affiliate are satisfied. Accordingly, the Optionee may not be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled able to exercise the Option or portion will indemnify when desired even though the Option is vested, and the Company against and hold it free and harmless from any losswill have no obligation to issue a certificate for such Common Shares, damage, expense or liability resulting to the Company if any sale or distribution of the shares by unless such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesobligations are satisfied.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Share Option Agreement (Xenon Pharmaceuticals Inc.)
Manner of Exercise. The Optionpurchase rights evidenced by this ------------------ Option Agreement shall be exercised by the optionee with the Notice of Exercise in the form of Exhibit A hereto duly executed by the Optionee, to the Company at its principal office (or any exercisable portion thereof, such other office as may be exercised solely designated by delivery the Company to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed Optionee), accompanied by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash cash, by wire transfer or by checkcertified or official bank check or checks) for of the shares with respect to which the Option Purchase Price, or portion is exercised; or
(ii) surrender by delivering to the Company of that the number of fully paid and non-assessable shares of the Company's Common Stock having a value on the date of exercise equal to such Purchase Price. In lieu of a monetary payment or delivery of shares for the applicable Purchase Price, the Holder may elect to receive, without the payment of any additional consideration, shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable the value of the Shares to be acquired upon exercise price; or
(iiiby completing the Notice of Exercise with the net issuance election marked. Thereupon, the Company shall issue to the Optionee, such number of shares of Common Stock as is computed using the following formula: X = Y(A-B) delivery of notice of a "net value" exercise which reduces -------- A where X = the number of shares to be received upon such exercise to a "Net Number" of shares determined according issued to the following formula: Net Number Holder pursuant to this Section 7.01. Y = (A x (B - C))/B. For purposes the number of Shares in respect of which the foregoing formula: net issuance election is made pursuant to this Section 7.01. A = the total number closing price of shares with respect to which this Option is then being exercised; B = one share of Common Stock for the last reported trading day immediately preceding the date of the Notice of Exercise is given pursuant to this Section 7.01, which closing price shall be the last sale price (as regular way or if no reported by last sale price regular way for such, the last high bid price, in either case on the principal national securities exchange or stock quotation system on which the Common Stock is then listed or traded) of the Common Stock on the trading date immediately preceding the date of . B = the applicable exercise of this Option; and C = the exercise price then Purchase Price in effect at the time of such exercise. It the net issuance election is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory made pursuant to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares7.01.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (American Electromedics Corp)
Manner of Exercise. The A Stock Option, or any exercisable portion thereof, may only be exercised solely by delivery delivering to the Secretary General Counsel of the Company of all of the following prior to the time when the Stock Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 4:
(ai) Notice in writing signed by the Employee Participant or the other person then entitled to exercise the OptionStock Option or portion thereof, stating that the Stock Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(bii) At the discretion By payment via one or a combination of the Employee:
following methods: (iA) delivery of full Full payment (in cash or by checkcheck or by a combination thereof) for the shares Shares with respect to which the such Stock Option or portion thereof is exercised; or
, (iiB) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock tendering Shares, then owned by Employee based on the Participant for not less than six (6) months, having an aggregate Fair Market Value equal to such portion of the exercise price intended for payment therewith, (C) a Cashless Exercise if so permitted by the Committee, (D) during such period in which a Cashless Exercise is not permitted, the Participant’s written election to have the number of Shares that would otherwise be issued to the Participant pursuant to such exercise reduced by a number of Shares having an aggregate Fair Market Value equal to such portion of the exercise price intended for payment therewith, or (E) any other method as that term is defined may be permitted in the Plan) equal to applicable exercise price; orsole discretion of the Committee;
(iii) delivery of notice of a "net value" exercise which reduces Full payment (in cash (including via Cashless Exercise if then permitted), by check, directing the number of shares Company (or other Group Company) to be received upon such exercise to a "Net Number" of shares determined according withhold cash compensation otherwise then payable to the following formula: Net Number = (A x (B - C))/B. For purposes of Participant, or by a combination thereof) to satisfy the foregoing formula: A = the total number of shares minimum withholding tax obligation with respect to which this such Stock Option or portion thereof is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) provided, that if such exercise occurs following an involuntary termination of the Common Stock on Participant’s employment without Cause, during such period in which a Cashless Exercise is not permitted, the trading date immediately preceding Participant’s written election to have the date number of Shares that would otherwise be issued to the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any Participant pursuant to such exercise contemplated hereunder be exempt from reduced by a number of Shares having an aggregate Fair Market Value equal to not more than the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.minimum withholding tax obligation intended for payment therewith;
(iv) delivery Satisfaction of a combination all of the consideration provided in the foregoing Sections 4.3(b)(irequirements under Section 4(d), and 4.3(b)(ii).; and
(cv) A bona fide written representation and agreement in a form satisfactory to In the Committee, signed by event the Employee or other person then entitled to exercise such Stock Option or portionportion thereof shall be exercised pursuant to Section 4(a) by any person or persons other than the Participant, stating that appropriate proof of the shares authority of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing such person or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled persons to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulationsStock Option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on exercise of the a Stock Option does not violate the Act Securities Act, or the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed, and any applicable Federal or state laws. With respect thereto, the Committee may issue stop-transfer orders covering such shares. Share Any certificates evidencing Common Stock Shares issued upon the on exercise of the this Stock Option shall bear an appropriate legend referring to the provisions (as may apply) stating: “The shares of stock represented by this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, certificate have not be required if the shares to be issued pursuant to such exercise have been registered under the U.S. Securities Act of 1933 (“Act”) and such may not be transferred, sold or otherwise disposed of in the absence of an effective registration statement with respect to the shares evidenced by this certificate, filed and made effective under the Act, or an opinion of counsel satisfactory to Byline Bancorp, Inc. to the effect that registration under the Act is then effective not required. The shares of stock represented by this certificate are subject to certain restrictions on transfer contained in respect an option agreement, a copy of such shareswhich will be furnished upon request by the issuer.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.”
Appears in 1 contract
Manner of Exercise. The Employee, or Employee’s representative, may exercise any portion of this Option that has become vested under Section 3 of this Agreement by giving notice in a manner approved by the Committee, specifying the election to exercise the Option, or any exercisable portion thereof, may be the number of Shares for which it is being exercised solely by delivery to and the Secretary method of payment for the amount of the Company of all Purchase Price of the following prior to the time when the Shares for which this Option or such portion may no longer is exercised. Such payment shall be exercised pursuant to the provisions of Article 3made:
(a) Notice In United States dollars delivered at the time of exercise; or
(b) If the Committee has established a broker-assisted cashless exercise program, payment may be made all or in writing signed part by delivery (in a manner approved by the Employee Committee) of an irrevocable direction to a securities broker to sell Shares and to deliver all or part of the other sale proceeds to the Corporation in payment of the Purchase Price. The notice shall be provided by the person then entitled or persons exercising this Option, and in the event this Option is being exercised by the representative of Employee, shall be accompanied by proof satisfactory to the Corporation of the right of the representative to exercise the Option. No Share shall be issued until full payment has been made. The Corporation may permit such other payment forms as it deems appropriate (including the surrender of Shares in good form for transfer, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established owned by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which person exercising this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange and having an aggregate fair market value on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of exercise equal to the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"Purchase Price), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i)subject to applicable laws, regulations and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory rules. Notwithstanding anything to the Committeecontrary contained herein, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring be subject to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof terms of the right of such person or persons to exercise the OptionCorporation’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 2.3:
(a) Notice in writing An exercise notice signed or submitted online using the website of the Company’s designated brokerage firm by the Employee Holder or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such 4-Year Time Based Vesting Stock Options notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in such form as is prescribed by the Administrator; and
(b) At the discretion Subject to Section 6.2(d) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on Holder for at least six (6) months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that ▇▇▇▇▇▇ has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the shares of Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation Such representations and agreement documents as the Administrator, in a form satisfactory its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee any other federal or other person then entitled to exercise the Option state securities laws or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to aboveregulations. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which in the discretion of the Administrator may be in the form of consideration used by Holder to pay for such shares under Section 3.3(b), subject to Section 10.4 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeHolder, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Leap Wireless International Inc)
Manner of Exercise. The 1.3.1 Upon compliance with and subject to the conditions set forth in this Option, the Holders may exercise this Option, in whole or any exercisable portion thereofin part, may be exercised solely by delivery upon surrender of this Option with the form of subscription attached hereto duly executed to the Secretary Grantor at his corporate office at the address indicated in this Option, together with the full Purchase Price for each Share to be purchased (i) in lawful money of the Company of all United States, or by certified check, bank draft or postal or express money order payable in United States dollars to the order of the following prior to Grantor; (ii) withheld Shares upon the time when the Option or such portion may no longer be exercised pursuant to the provisions exercise of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that including the Option or Shares subject to this Option, having a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term at the time the Option is defined in the Plan) exercised equal to the Purchase Price, plus the Holders’ payment to the Grantor of an amount equal to fifteen (15%) percent of the total Purchase Price of the shares purchased under this Option, applicable exercise pricewithholding tax, if any; or
(iii) delivery any combination of notice of the foregoing; or (iv) a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according manner acceptable to the following formula: Net Number = (A x (B - C))/B. For purposes Grantor.
1.3.2 Upon receipt of this Option with the form of subscription duly executed and accompanied by payment of the foregoing formula: A = aggregate Purchase Price for the total number of shares with respect to Shares for which this Option is then being exercised; B = , the last reported sale price (Grantor shall submit certificates representing the Shares purchased to the Company for transfer so that the Company will issue certificates or other evidence of ownership, for the total number of whole Shares for which this Option is being exercised in such denominations as reported by are required for delivery to the principal national securities exchange on which Holders, and the Common Stock is then traded) Grantor will direct the Company to deliver such certificates to the Holders or their nominees.
1.3.3 If the Holders exercise this Option with respect to fewer than all of the Common Stock on Shares that may be purchased under this Option, the trading date immediately preceding Grantor shall execute a new Option for the date balance of the applicable Shares that may be purchased upon exercise of this Option; Option and C = deliver such new Option to the exercise price then Holders.
1.3.4 The Holders will pay any transfer or similar tax that may be payable in effect respect of any transfer involved in the issuance or delivery of this Option or of the Shares to the Holders or in a name or names other than that of the Holders at the time of surrender, and until the payment of such exercise. It is specifically intended that tax, the Grantor shall not be required to direct the Company to issue such Shares.
1.3.5 The Grantor shall, at the time of any exercise of all or part of this Option, upon the request of the Holders hereof, acknowledge in writing his continuing obligation to afford to such Holders any rights to which such Holders shall continue to be entitled after such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance accordance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shallOption, however, not be required provided that if the shares Holders shall fail to be issued pursuant make any such request, such failure shall not affect the continuing obligations of the Grantor to afford to such exercise have been registered under the Act and Holders any such registration is then effective in respect of such sharesrights.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The An exercisable Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the such Option or such portion may no longer be exercised pursuant to becomes unexercisable under the provisions of Article 3Plan or the Award Agreement:
(a) Notice in writing 5.2.1 A written notice signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee Participant or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the such Option or portion will indemnify thereof is being exercised, provided such notice complies with all applicable rules established by the Company against Committee from time to time;
5.2.2 Such representations and hold it free and harmless from any loss, damage, expense or liability resulting to documents as the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee mayCommittee, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Committee may, the Committee may require an opinion of counsel acceptable in its absolute discretion, also take whatever additional actions it deems appropriate to it effect such compliance including, without limitation, causing legends to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act be placed on Common Share certificates and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars;
(d) 5.2.3 In the event that the Option or portion shall be exercised pursuant to Section 4.1 12.1 by any person or persons other than the EmployeeParticipant, appropriate proof of the right of such person or persons to exercise the Option or portion thereof; and
5.2.4 Full payment (in cash or by a certified check) for the Common Shares with respect to which the Option or portion thereof is exercised, including the amount of any withholding tax due, unless with the prior written consent of the Committee:
5.2.4.1. payment, in whole or in part, is made through the delivery of shares of Common Shares owned by the Participant, duly endorsed for transfer to the Company with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof, provided, that shares of Common Shares used to exercise the Option have been held by the Participant for the requisite period of time to avoid adverse accounting consequences to the Company with respect to the Option;
5.2.4.2. payment, in whole or in part, is made through the surrender of shares of Common Shares then issuable upon exercise of the Option having a Fair Market Value on the date of Option exercise equal to the aggregate exercise price of the Option or exercised portion thereof;
5.2.4.3. payment through a broker at the time required in accordance with procedures permitted by Regulation T of the Federal Reserve Board; or
5.2.4.4. payment is made through any combination of the consideration provided for in this Section 5.2.4 or such other method approved by the Committee consistent with applicable law.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may Each exercise of the Option shall be exercised solely by delivery means of a written notice of exercise delivered to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionCompany, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces specifying the number of shares to be received upon such exercise purchased and accompanied by payment to a "Net Number" the Company of the full purchased price of the shares to be purchased solely (i) in cash or by check payable to the order of the Company, (ii) by delivery of shares of Common Stock of the Company already owned by, and in the possession of, the Optionee, valued at their fair market value, as determined according in accordance with Section 4, or (iii) (x) by a promissory note made by Optionee in favor of the Company, upon the terms and conditions determined by the Committee including, to the following formula: Net Number = extent the Committee determines appropriate, a security interest in the shares issuable upon exercise or other property, or (A x y) through a “cashless exercise,” in either case complying with applicable law (B - C))/B. For purposes including, without limitation, state and federal margin requirements), or any combination thereof. Shares of Common Stock used to satisfy the exercise price of this Option shall be valued at their fair market value determined (in accordance with Section 4 hereof) on the date of exercise (or if such date is not a business day, as of the foregoing formula: A = close of the business day immediately preceding date). This Option may not be exercised for a fraction of a share and no partial exercise of this Option may be for less than (a) one hundred (100) shares or (b) the total number of shares with respect to which this then eligible for exercise, if less than one hundred (100) shares. The Option is then being exercised; B = may be exercised (i) during the last reported sale price (as reported lifetime of the Optionee only by the principal national securities exchange on which Optionee; (ii) to the Common Stock is then traded) of extent permitted by the Common Stock on Committee or by the trading date immediately preceding the date of the applicable exercise terms of this OptionAgreement, Optionee’s spouse if such spouse obtained the Option pursuant to a qualified domestic relations ordered as defined by the Code of Title I of ERISA, or the rules there under (“Qualified Domestic Relations Order”); and C = (iii) after the exercise price then in effect at Optionee’s death by his or her transferees by will or the time laws of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Actdescent or distribution.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 2.3:
(a) Notice An exercise notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
. Such notice shall be substantially in the form attached as Exhibit A (bor such other form as is prescribed by the Committee) At (the discretion of the Employee:“Exercise Notice”); and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender With the consent of the Committee, such payment may be made, in whole or in part, through the delivery of shares of Stock which have been owned by the Optionee for at least six months, duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is shares of Stock then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option. With the consent of the Committee, (i) shares of Stock owned by the Optionee for at least six months duly endorsed for transfer or (ii) shares of Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 3.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The OptionThis Option may be exercised, in accordance with Section I above, by delivery (personally or by certified or registered mail in accordance with Section VII. below) of a written notice to the Company's Secretary specifying the number of Shares to be purchased and accompanied by payment for those Shares and any applicable withholding taxes. At the election of _________________________, such payment may be made in cash, check, or any exercisable portion thereof, may be exercised solely by delivery of certificate(s) representing Shares of the Company's common stock previously held by _________________________, duly endorsed for transfer, or shares issuable to _________________________ pursuant to the Secretary exercise of the Option. The Administrator may also permit payment to be made in such other manner as the Administrator deems appropriate and in compliance with applicable law. Any shares delivered to the Company of all in payment of the following aggregate Option Price shall be valued at the fair market value of the Company's shares, such valuation to be equal to the average of the highest and lowest selling price for the Company's stock quoted on the Composite Tape for New York Stock Exchange Listed Companies for the date of _________________________'s exercise of the Option or any part thereof (or if no sales are reported on that date, for the first date prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed exercise date upon which a sale was reported). Unless otherwise provided by the Employee or Administrator, if _________________________ is, at the other person then entitled to exercise the Optiontime of exercise, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (an Officer as that term is defined in the Plan) , the Company shall withhold the appropriate number of Shares, rounded up to the next whole number, as are determined by the Administrator to have a Fair Market Value equal to the amount required to satisfy applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option withholding taxes. If _________________________ is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding not an Officer at the date of exercise, he may elect to have Shares withheld or may deliver cash or a check to pay the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to abovewithholding taxes. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than in accordance with such administrative regulations as the Employee, appropriate proof Administrator of the right of such person or persons Plan shall from time to exercise the Optiontime adopt.
Appears in 1 contract
Sources: Stock Option Agreement (Bingham Financial Services Corp)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice To exercise this Option, Participant (or in writing signed by the Employee case of exercise after Participant’s death or incapacity, Participant’s executor, administrator, heir or legatee, as the other person then entitled case may be) must deliver written notice of exercise to the Company (the “Exercise Agreement”), which shall set forth, inter alia, (i) Participant’s election to exercise the Option, stating (ii) the number of Shares being purchased and (iii) any representations, warranties and agreements regarding Participant’s investment intent and access to information as may be required by the Company to comply with applicable securities laws. If someone other than Participant exercises the Option, then such person must submit documentation reasonably acceptable to the Company verifying that such person has the legal right to exercise the Option or a portion thereof is thereby exercised, and such notice complying with person shall be subject to all applicable rules established by of the Committee;restrictions contained herein as if such person were the Participant.
(b) At This Option may not be exercised unless such exercise is in compliance with all applicable federal and state securities laws, as they are in effect on the discretion date of exercise. The Exercise Agreement shall be accompanied by full payment of the Employee:
Exercise Price for the Shares being purchased in cash (iincluding by check) delivery of full payment (or as permitted under the Plan. The Exercise Price must be paid in United States dollars, in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender personal check payable to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes order of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect Company, at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii)purchase.
(c) A bona fide written representation and agreement in a form satisfactory Alternatively, subject to applicable law, the CommitteeParticipant may elect to pay the Exercise Price, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any part of them except as may be permitted under the Act and then applicable rules and regulations thereunderit, and that the Employee by: (i) delivering Mature Shares (valued at their Fair Market Value) or other person then entitled to exercise the Option or portion will indemnify (ii) having the Company against retain Shares (valued at their Fair Market Value); or (iii) any combination of cash, personal check and hold it free and harmless from any loss, damage, expense (i) or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares(ii).
(d) In the event the Option or portion shall be exercised The Company may make available, in its sole discretion and subject to applicable law, a special sale and remittance procedure pursuant to Section 4.1 by which the Participant (or any other person or persons other than exercising the Employee, appropriate proof Option) shall provide irrevocable written instructions concurrently to: (i) a Participant-designated brokerage firm acceptable to the Company to effect the immediate sale of a portion of the right Shares to be received pursuant to the exercise of the Option, and remit to the Company, out of the sale proceeds available on the settlement date or otherwise, the minimum amount of funds required to cover the aggregate Exercise Price payable for the Option Shares plus all Applicable Withholding Taxes; and (ii) the Company to deliver promptly upon receipt of such person or persons funds the certificates for such Shares directly to exercise the Optionsuch brokerage firm.
Appears in 1 contract
Manner of Exercise. The OptionSubject to such administrative regulations as the Committee may from time to time adopt, or any exercisable portion thereof, the Stock Option may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory an Exercise Notice to the Committee, signed and the Exercise Date for the Optioned Shares being exercised shall be at least three (3) days after giving such Exercise Notice to the Committee unless an earlier time shall have been mutually agreed upon. On the Exercise Date, the Participant shall deliver to the Company consideration with a value equal to the total Option Price of the shares to be purchased, payable as follows: (a) cash, check, bank draft, or money order payable to the order of the Company; (b) if the Company, in its sole discretion, so consents in writing, Common Stock (including Restricted Stock) owned by the Employee Participant on the Exercise Date, valued at its Fair Market Value on the Exercise Date, and which the Participant has not acquired from the Company within six (6) months prior to the Exercise Date; (c) if the Company, in its sole discretion, so consents in writing, by delivery (including by FAX) to the Company or other person then entitled its designated agent of an executed irrevocable option exercise form together with irrevocable instructions from the Participant to exercise such Option a broker or portiondealer, stating that reasonably acceptable to the Company, to sell certain of the shares of Common Stock are being acquired for purchased upon exercise of the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Stock Option or portion will indemnify the Company against to pledge such shares as collateral for a loan and hold it free and harmless from any loss, damage, expense or liability resulting promptly deliver to the Company if any the amount of sale or distribution loan proceeds necessary to pay such purchase price; (d) by requesting the Company to withhold the number of shares otherwise deliverable upon exercise of the Stock Option by the number of shares by such person is contrary of Common Stock having an aggregate Fair Market Value equal to the representation and agreement referred aggregate Option Price at the time of exercise (i.e., a cashless net exercise), and/or (e) in any other form of valid consideration that is acceptable to above. The the Committee may, in its absolute sole discretion, take whatever additional actions it deems appropriate to ensure . In the observance and performance event that shares of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon Restricted Stock are tendered as consideration for the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing a Stock Option, a number of shares of Common Stock issued upon the exercise of the Stock Option shall bear an appropriate legend referring equal to the number of shares of Restricted Stock used as consideration therefor shall be subject to the same restrictions and provisions as the Restricted Stock so tendered. Upon payment of this Section 4.3(c) and all amounts due from the agreements herein and thereinParticipant, the Company shall cause the Common Stock then being purchased to be electronically registered in the Participant’s name (or the name of the person exercising the Participant’s Stock Option in the event of the Participant’s death), promptly after the Exercise Date. The written representation and agreement referred to Company shall not issue certificates for Common Stock unless the Participant (or the person exercising the Participant’s Stock Option in the first sentence event of this Section 4.3(cthe Participant’s death) requests delivery of the certificates for the Common Stock in writing and in accordance with the procedures established by the Committee. The Company shall deliver the certificates as soon as administratively practicable following the Company’s receipt of the written request from the Participant (or the person exercising the Participant’s Stock Option in the event of the Participant’s death) for delivery of the certificates. The obligation of the Company to register or deliver such shares of Common Stock shall, however, be subject to the condition that, if at any time the Company shall determine in its discretion that the listing, registration, or qualification of the Stock Option or the Common Stock upon any securities exchange or inter-dealer quotation system or under any state or federal law, or the consent or approval of any governmental regulatory body, is necessary as a condition of, or in connection with, the Stock Option or the issuance or purchase of shares of Common Stock thereunder, then the Stock Option may not be required if the shares to be issued pursuant to exercised in whole or in part unless such exercise listing, registration, qualification, consent, or approval shall have been registered under effected or obtained free of any conditions not reasonably acceptable to the Act and such registration is then effective in respect of such shares.
(d) In Committee. If the event the Option or portion shall be exercised pursuant Participant fails to Section 4.1 by pay for any person or persons other than the Employee, appropriate proof of the Optioned Shares specified in such notice or fails to accept delivery thereof, that portion of the Participant’s Stock Option and the right of to purchase such person or persons to exercise Optioned Shares may be forfeited by the OptionParticipant.
Appears in 1 contract
Sources: Incentive Stock Option Agreement (MyMD Pharmaceuticals, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Committee stating that the discretion of the Employee:
(i) delivery of full payment (in cash Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option or portion will indemnify such portion; and
(b) Full cash payment to the Secretary of the Company against and hold it free and harmless for the shares with respect to which the Option, or portion thereof, is exercised. However, the Committee may in its discretion (i) allow a delay in payment up to thirty (30) days from any lossthe date the Option, damageor portion thereof, expense is exercised; (ii) allow payment, in whole or liability resulting in part, through the delivery of shares of Common Stock owned by the Optionee, duly endorsed for transfer to the Company if any sale or distribution with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; (iii) allow payment, in whole or in part, through the surrender of shares by such person is contrary of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of Option exercise equal to the representation aggregate exercise price of the Option or exercised portion thereof; (iv) allow payment, in whole or in part, through the delivery of property of any kind which constitutes good and agreement referred valuable consideration; (v) allow payment, in whole or in part, through the delivery of a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable upon such terms as may be prescribed by the Committee or the Board; (vi) allow payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to aboveshares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; or (vii) allow payment through any combination of the consideration provided in the foregoing subparagraphs (ii), (iii), (iv), (v) and (vi). In the case of a promissory note, the Committee may also prescribe the form of such note and the security to be given for such note. The Committee mayOption may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; and
(c) Such representations and documents as the Committee, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Committee may, the Committee may require an opinion of counsel acceptable in its absolute discretion, also take whatever additional actions it deems appropriate to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act such compliance, including, without limitation, placing legends on share certificates and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Employee Non Qualified Stock Option Agreement (FTD Group, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of or his or her designee all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:becomes unexercisable under Section 3.2 or Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Company;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by checkcheck or by a combination thereof) for the shares Shares with respect to which the such Option or portion thereof is exercised (provided, however, that full payment is deemed made if the Company receives cash in respect of the exercise price no later than the date on which the Company or its agent delivers or releases Shares to the Optionee or his agent, which date shall not be later than two (2) business days following the date on which the Option is exercised; or
, in the event of a cashless exercise via a third party in a manner that is compliant with applicable law) or (ii) surrender notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value this subsection (as that term is defined in the Plan) equal to applicable exercise price; orb);
(iiii) delivery of notice of Full payment (in cash or by check or by a "net value" exercise which reduces combination thereof) to satisfy the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares minimum withholding tax obligation with respect to which this such Option or portion thereof is then being exercised; B = exercised (provided, however, that full payment is deemed made if the last reported sale price (as reported by Company receives such payment no later than the principal national securities exchange date on which the Common Stock Company must remit such withholding to the Internal Revenue Service in the event of a cashless exercise via a third party in a manner that is then tradedcompliant with applicable law); (ii) notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of this subsection (c); or (iii) notice in writing to the Common Stock Company at least ten (10) days (or such shorter period approved by the Committee) prior to date of exercise that the Optionee elects to pay the withholding tax obligation with previously owned Shares and, subject to all applicable rules established by the Committee, the delivery (or deemed delivery, as allowed by the Committee) on the trading date immediately preceding or prior to the date of the applicable exercise of this Optionsuch Shares having a Fair Market Value equal to the withholding amount; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(cd) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares Shares of Common Stock are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act and may issue stop-transfer orders covering such sharesShares. Share certificates evidencing Common Stock stock issued upon the on exercise of the Option shall may bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a notice in writing to the event Company includes notice in writing to a third party engaged by the Option Company to provide administrative services under the Plan and also includes notice via electronic or portion telephone enabled systems pursuant to approved procedures and a notice is considered signed if it is signed electronically in accordance with approved procedures and such electronic signature will have the same force and effect as a manual signature. Notwithstanding the above, the Committee may approve alternative procedures for exercise and alternative procedures for payment of the related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of exercise. No alternative procedure for exercise shall be exercised pursuant to Section 4.1 by any person or persons other than effective unless the Employee, appropriate proof of the right of such person or persons to Optionee completes all actions required for exercise the Optionand payment.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary Corporation, at the address given beneath the signature of the Company Corporation’s authorized officer on the Grant Notice, of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) Notice An exercise notice in writing signed by the Employee Optionee or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeCorporation. Such notice shall be substantially in on of the forms attached as Exhibit B to the Grant Notice;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by check) for the shares of Common Stock with respect to which the Option or portion thereof is exercisedexercised in one or more of the following forms:
(i) Cash or check made payable in US currency to the Corporation; or
(ii) surrender Shares of Common Stock valued at Fair Market Value on the Exercise Date which have been owned by Optionee for at least six (6) months, duly endorsed for transfer to the Company of that number of fully paid and non-assessable Corporation;
(iii) The optionee may elect to receive shares of Common Stock owned by Employee based on equal to the Fair Market Value (as that term is defined value of the entire unexercised portion of the option determined in the Planmanner described below (or any portion of the option remaining unexercised) equal to applicable exercise price; or
(iii) upon delivery of notice Notice of Cashless Exercise Form annexed hereto duly executed. In such event the Corporation shall issue to the optionee a "net value" exercise which reduces number of shares of the Corporation's Common Stock computed using the following formula: X = Y (A-B) Where X = the number of shares of Common Stock to be received upon such exercise issued to a "Net Number" the optionee. Y = the number of shares determined according to of Common Stock purchasable under this option for which the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: optionee elects a cashless exercise. A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) Market Value of the Corporation's Common Stock on the trading date business day immediately preceding the day on which the Notice of Cashless Exercise is received by the Corporation. B = The Price set forth on the first page of this Agreement (as adjusted to the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(iicalculation).
(c) A bona fide written representation and agreement in For purposes of this Agreement, the Market Value of a form satisfactory share of Common Stock on any date shall be equal to (i) the Committee, signed closing bid price per share as published by the Employee a national securities exchange on which shares of Common Stock (or other person then entitled to exercise units of the security) are traded (an "Exchange") on such Option or portiondate or, stating that if there is no bid for Common Stock on such date, the bid price on such Exchange at the close of trading on the next earlier date or, (ii) if shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by not listed on a national securities exchange on such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingdate, the Committee may require an opinion closing bid price per share as published on the National Association of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(cSecurities Dealers Automatic Quotation System ("NASDAQ") and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required National Market System if the shares to be issued pursuant to are quoted on such exercise have been registered system on such date, or (iii) the closing bid price in the over-the-counter market at the close of trading on such date if the shares are not traded on an Exchange or listed on the NASDAQ National Market System, or (iv) if the Common Stock is not traded on a national securities exchange or in the over-the-counter market, the fair market value of a share of Common Stock on such date as determined in good faith by the Board of Directors. If the optionee disagrees with the determination of the Market Value of any securities of the Corporation determined by the Board of Directors under Section 2(c)(iv), the Act and such registration is then effective in respect Market Value of such shares.
(d) In the event the Option or portion securities shall be exercised pursuant determined by an independent appraiser acceptable to Section 4.1 the Corporation and the optionee (or, if they cannot agree on such an appraiser, by any person or persons other than an independent appraiser selected by each of them, and Market Value shall be the Employee, appropriate proof median of the right appraisals made by such appraisers). If there is one appraiser, the cost of such person or persons to exercise the Optionappraisal shall be shared equally between the Corporation and the optionee. If there are two appraisers, each the Corporation and the optionee shall pay for its own appraisal.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, This Warrant may be exercised solely by delivery the holder hereof, in whole (and not in part) , during normal business hours on any Business Day, by surrender of this Warrant to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised at its office maintained pursuant to the provisions of Article 3:
subdivision (a) Notice of Section 6.2, accompanied by a subscription in writing signed by substantially the Employee or the other person then entitled form attached to exercise the Option, stating that the Option this Warrant (or a portion thereof is thereby exercisedreasonable facsimile thereof) duly executed by such holder and accompanied by payment, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option certified or portion is exercised; or
(ii) surrender official bank check payable to the order of the Company of that in the amount obtained by multiplying (b) the number of shares of Common Stock ( without giving effect to any adjustment thereof) designated in such subscription by (c) the Initial Price, and such holder shall thereupon be entitled to receive the number of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (or Other Securities) determined as that term is defined provided in the Plan) equal to applicable exercise price; or
(iii) delivery Articles II through IV. In lieu of notice of a "net value" exercise which reduces delivering the number of shares to be received upon such exercise to a "Net Number" of shares determined according Common Stock (or Other Securities) calculated under the previous sentence, the Company shall if requested by the holder of this Warrant, issue to the following formulaholder of this Warrant upon exercise a number of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock (or Other Securities) equal to the following, rounded to the nearest whole share: Net Number = the quotient of (A x i) the product of (B - C))/B. For purposes of x) the foregoing formula: A = the total number of shares with respect of Common Stock (or Other Securities) to which this Option is then being exercised; B = the last reported sale price (as reported be delivered under such previous sentence multiplied by the principal national securities exchange on which the Common Stock is then traded) Market Price of the Common Stock (or Other Securities) on the trading date immediately preceding the date of exercise minus (y) the applicable exercise of this Option; and C = aggregate amount the exercise price then holder is required to pay to the Company as provided in effect at the time of such sentence upon such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from , divided by (ii) the "short-swing profit" rule of Section 16(b) Market Price of the Exchange Act Common Stock (or Other Securities) on the date of 1934, as amended (exercise. If the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the Company delivers shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing (or reselling said shares or any of them except as may be permitted Other Securities) under the Act and preceding sentence, then applicable rules and regulations thereunder, and that the Employee or other person then entitled holder shall not be required to exercise the Option or portion will indemnify the Company against and hold it free and harmless from make any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, payment in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance connection with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesWarrant.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The An Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of or his office or the Company of Company’s agent, if so directed all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender Committee and made available to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value Optionee (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon or such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option);
(b) Full payment (in cash, by cheque, electronic transfer, by way of a cashless exercise as approved by the Company, by way of surrender of Shares to the Company, by withholding in Shares to be issued upon Option exercise as approved by the Company in its sole discretion, or by a combination thereof) of the Exercise Price for the Shares with respect to which such Option or portion will indemnify thereof is exercised, provided the Company against Shares surrendered or withheld have a fair market value (determined as of the day preceding the date of exercise) that is not less than such Exercise Price or part thereof and hold it free and harmless from any loss, damage, expense or liability resulting Tax-Related Items (as defined in (d) below);
(c) Full payment to the Company if or any sale Subsidiary, by which the Optionee is employed (the “Employer”) of all income tax, payroll tax, payment on account, and social insurance contributions amounts (“Tax”) which, under federal, state, local or distribution foreign law, it is required to withhold upon exercise of the shares Option; and
(d) In a case where any Employer is obliged to (or would suffer a disadvantage if it were not to) account for any Tax (in any jurisdiction) for which the Optionee is liable by such person is contrary virtue of the Optionee’s participation in the Plan and/or any social security contributions recoverable from and legally applicable to the representation and agreement referred Optionee (the “Tax-Related Items”), the Optionee will pay or make adequate arrangements satisfactory to abovethe Company and/or the Employer to satisfy all Tax-Related Items. The Committee mayIn this regard, in its absolute the Optionee authorizes the Company and/or the Employer, or their respective agents, at their discretion, take whatever additional actions it deems appropriate to ensure satisfy the observance and performance of such representation and agreement and obligations with regard to effect compliance with the Act and any other federal all Tax-Related Items by one or state securities laws or regulations. Without limiting the generality a combination of the foregoing, following:
(i) withholding from the Committee may require an opinion of counsel acceptable to it Optionee’s wages or other cash compensation paid to the effect that any subsequent transfer Optionee by the Company and/or the Employer; or
(ii) withholding from proceeds of the shares acquired upon the sale of Shares issued at exercise of the Option does not violate either through a voluntary sale or through a mandatory sale arranged by the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock Company (on the Optionee’s behalf pursuant to this authorization); or
(iii) withholding in Shares to be issued upon the at exercise of the Option shall bear an appropriate legend referring Option. To avoid any negative accounting treatment, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Optionee is deemed to have been issued the full number of Shares subject to the provisions exercised Option, notwithstanding that a number of this Section 4.3(c) and Shares are held back solely for the agreements herein and therein. The written representation and agreement referred to purpose of paying the Tax-Related Items due as a result of any aspect of the Optionee’s participation in the first sentence Plan. Finally, the Optionee shall pay to the Company or the Employer any amount of this Section 4.3(c) shall, however, Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Optionee’s participation in the Plan that cannot be required if satisfied by the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesmeans previously described.
(de) In the event the Option or any portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee may, prior to exercise, require an opinion of counsel reasonably acceptable to it to the effect that any subsequent transfer of Shares acquired on exercise of an Option does not violate the Exchange Act and may issue stop-transfer orders in the U.S. covering such Shares.
Appears in 1 contract
Sources: Share Purchase and Option Plan (Willis Group Holdings PLC)
Manner of Exercise. (a) The Optionee may exercise the Stock Option only in the following manner: From time to time on or prior to the Expiration Date (as defined below), the Optionee may give written notice to the Company of his election to purchase some or all of the Option Shares purchasable at the time of such notice. This notice shall specify the number of Option Shares to be purchased. Payment of the purchase price for the Option Shares may be made by one or more of the following methods: (i) in cash or its equivalent (e.g., by personal check) at the time the Stock Option is exercised; (ii) in Shares having a Fair Market Value equal to the aggregate Option Exercise Price Per Share for the Option Shares being purchased and satisfying such other requirements as may be imposed by the Board; provided, that such Shares have been held by the Optionee for no less than six months (or such other period as established from time to time by the Board in order to avoid adverse accounting treatment applying generally accepted accounting principles); (iii) partly in cash and partly in Shares (as described in the preceding clause (ii)); (iv) if there is a public market for the Shares at such time, through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Stock Option and to deliver promptly to the Company an amount out of the proceeds of such sale equal to the aggregate Option Exercise Price Per Share for the Option Shares being purchased, provided that in the event the Optionee chooses to pay the Option Exercise Price Per Share as so provided, the Optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Board shall prescribe as a condition of such payment procedure; or (v) through “net settlement” in Shares. In the case of a “net settlement” of the Stock Option, or the Company will not require a cash payment of the Option Exercise Price Per Share for the Option Shares being purchased, but will reduce the number of Shares issued upon the exercise by the largest number of whole Shares that have a Fair Market Value that does not exceed the aggregate Option Exercise Price Per Share for the Option Shares set forth in this Agreement. With respect to any exercisable portion thereofremaining balance of the aggregate Option Exercise Price Per Share for the Option Shares, may the Company shall accept a cash payment. Payment instruments will be exercised solely by delivery received subject to collection. The transfer to the Secretary Optionee on the records of the Company of all or of the following prior transfer agent of the Option Shares will be contingent upon (i) the Company’s receipt from the Optionee of the full purchase price for such Option Shares, as set forth above, (ii) the fulfillment of any other requirements contained herein or in any other applicable agreement or applicable laws and regulations, and (iii) the receipt by the Company of any agreement, statement or other evidence that the Company may require to satisfy itself that the issuance of the Shares pursuant to the time when exercise of the Stock Option and any subsequent resale of such Shares will be in compliance with applicable laws and regulations.
(b) The Shares purchased upon exercise of the Stock Option shall be transferred to the Optionee on the records of the Company or of the transfer agent upon compliance to the satisfaction of the Board with all requirements under applicable laws or regulations in connection with such portion may no longer transfer and with the requirements hereof. The determination of the Board as to such compliance shall be final and binding on the Optionee. The Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any Shares subject to the Stock Option unless and until the Stock Option shall have been exercised pursuant to the provisions terms hereof, the Company or the transfer agent shall have transferred the Shares to the Optionee, and the Optionee’s name shall have been entered as the stockholder of Article 3:record on the books of the Company.
(ac) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion The minimum number of the Employee:
(i) delivery of full payment (in cash or by check) for the shares Shares with respect to which the Stock Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces may be exercised at any one time shall be 100 Shares, unless the number of shares Shares with respect to be received upon such exercise to a "Net Number" of shares determined according to which the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = Stock Option is being exercised is the total number of shares with respect Shares subject to which this exercise under the Stock Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharestime.
(d) In Notwithstanding any other provision hereof, no portion of the event the Stock Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than exercisable after the Employee, appropriate proof of the right of such person or persons to exercise the OptionExpiration Date hereof.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Mri Interventions, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all or his or her office of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 2.2:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Administrator stating that the discretion of the Employee:
(i) delivery of full payment (in cash Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option or portion will indemnify such portion;
(b) Full payment (in cash or by check) to the Secretary of the Company against for the shares with respect to which the Option, or portion thereof, is exercised; provided, however, that the Administrator shall, (i) allow payment, in whole or in part, through the delivery of shares of Common Stock owned by the Optionee and hold it free and harmless from any loss, damage, expense or liability resulting duly endorsed for transfer to the Company if any sale or distribution with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; (ii) allow payment, in whole or in part, through the surrender of shares by such person is contrary of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of Option exercise equal to the representation aggregate exercise price of the Option or exercised portion thereof; (iii) at the discretion of the Administrator, allow payment, in whole or in part, through the delivery of property of any kind which constitutes good and agreement referred valuable consideration; (iv) at the discretion of the Administrator, allow payment, in whole or in part, through the delivery of a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable upon such terms as may be prescribed by the Administrator; (v) allow payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to aboveshares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided that payment of such proceeds is then made to the Company upon settlement of such sale; or (vi) at the discretion of the Administrator, allow payment through any combination of the consideration provided in the foregoing subparagraphs (i), (ii), (iii), (iv) and (v). In the case of a promissory note, the Administrator may also prescribe the form of such note and the security to be given for such note. The Committee mayOption may not be exercised, however, by delivery of a promissory note or by a loan from the Company, the Services Company, the Partnership or any Subsidiary when or where such loan or other extension of credit is prohibited by law. Notwithstanding the foregoing, (i) in no event shall any loan that is prohibited by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or that is inconsistent with the Company’s qualification as a REIT be permitted under this Agreement and (ii) any loan that is made hereunder at any time which is then not prohibited by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall become due and payable in full immediately before the loan would be prohibited by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(c) Such representations and documents as the Administrator, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act and any other federal or state securities laws or regulations. Without limiting The Administrator may, in its absolute discretion, also take whatever additional actions it deems appropriate to effect such compliance, including without limitation, placing legends on share certificates and issuing stop-transfer notices to agents and registrars;
(d) Full payment to the generality Company or the Employer, as applicable, of all amounts which, under federal, state or local tax law, it is required to withhold with respect to the issuance, vesting, exercise or payment of the foregoingOption; provided, however, that the Administrator shall, in satisfaction of the foregoing requirement, allow the Optionee to elect to effectuate a broker-assisted sale of, or have the Company or the Employer, as applicable, withhold, shares of Common Stock otherwise issuable under the Option (or allow the return of shares of Common Stock) having a Fair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan or this Agreement, the Committee number of shares of Common Stock which may require an opinion of counsel acceptable to it be sold or withheld with respect to the effect that any subsequent transfer of the shares acquired upon the issuance, vesting, exercise or payment of the Option does not violate (or which may be repurchased from the Act Optionee) in order to satisfy the Optionee’s federal and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon state income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of the Option shall bear an appropriate legend referring be limited to the provisions number of this Section 4.3(c) shares which have a Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal and the agreements herein state tax income and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant payroll tax purposes that are applicable to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.supplemental taxable income; and
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (MPG Office Trust, Inc.)
Manner of Exercise. The OptionSubject to such reasonable administrative regulations as the Administrator may adopt from time to time, or any exercisable portion thereof, may the exercise of vested Options by the Associate shall be exercised solely by delivery pursuant to the Secretary procedures set forth in Section 7.3 of the Company of all of the following prior to the time when the Option Plan or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
Administrator from time to time and shall include the Associate specifying the proposed date on which the Associate desires to exercise a vested Option (b) At the discretion “Exercise Date”), the number of the Employee:
(i) delivery of full payment (in cash or by check) for the shares Shares with respect to which the Options are being exercised (the “Exercise Shares”) and the aggregate Option Price for such Exercise Shares (the “Exercise Price”) or portion is exercised; or
such other or different requirements as may be imposed by the Company. Unless otherwise determined by the Administrator, (a) on or before the Exercise Date, the Associate shall deliver to the Company full payment for the Exercise Shares (i) in cash (through wire transfer only), (ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
personal, certified, or bank cashier check, (iii) delivery of notice of a "net value" exercise which reduces if available, through the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes use of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then tradedmethod set forth in Section 7.3(c)(iii) of the Common Stock on Plan, or (iv) with the trading date immediately preceding the date consent of the applicable exercise Administrator, through the use of this Option; and C = any of the exercise price then methods described in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(bSections 7.3(c)(ii) or (iv) of the Exchange Act of 1934Plan, as amended in an amount equal to (x) the "Exchange Act"), as provided by Rule 16b-3 Exercise Price plus (y) the minimum amount necessary to satisfy any and all Withholding Taxes arising in connection with the exercise of the Exchange Act.
(iv) delivery of a combination Option, unless the Company or any Subsidiary employing the Associate has exercised its right under Section 15.11 of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory Plan to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired withhold Shares issuable upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering to satisfy such shares. Share certificates evidencing Common Stock issued upon the exercise Withholding Taxes (notice of the Option amount which shall bear an appropriate legend referring to be provided by the provisions Administrator as soon as practicable following receipt by the Administrator of this Section 4.3(cthe notice of exercise) and (b) upon receipt of such payment of the agreements herein Exercise Price and thereinthe necessary amounts to satisfy Withholding Taxes, the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company’s transfer agent). The written representation and agreement referred Company may require the Associate to in furnish or execute such other documents as the first sentence of this Section 4.3(cCompany shall reasonably deem necessary (i) shall, however, not be required if the shares to be issued pursuant to evidence such exercise have been registered under or (ii) to comply with or satisfy the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof requirements of the right of such person Securities Act, applicable state or persons to exercise the Optionnon-U.S. securities laws or any other law.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Holder or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in the form attached as Exhibit C to the Grant Notice (or such other form as is prescribed by the Administrator); and
(b) At the discretion Subject to Section 6.2(d) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on Holder for at least six (6) months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that H▇▇▇▇▇ has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the shares of Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the CommitteeAdministrator, signed by Holder or the Employee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Holder’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Holder or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it [*] CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which in the discretion of the Administrator may be in the form of consideration used by Holder to pay for such shares under Section 4.3(b), subject to Section 10.4 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeHolder, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Leap Wireless International Inc)
Manner of Exercise. The Option, Optionee may exercise this option with respect to ------------------ all or any exercisable portion thereof, may be exercised solely by delivery to the Secretary part of the Company of all of the following prior Option Stock then subject to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3exercise as follows:
(a) Notice By giving the Company written notice of such exercise specifying the number of Option Shares as to which this option is so exercised and accompanied by an amount equal to the aggregate Option Price of such Option Shares, in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option form of cash or a portion thereof check, bank draft, or postal or express money order payable to the order of the Company in lawful money of the United States, or, if the Company's Class B Common Stock is thereby exercisedtraded on a national securities exchange or on the NASDAQ National Market System, such notice complying by delivering shares of Class B Common Stock previously acquired by Optionee and/or reducing the number of shares of Stock purchasable upon exercise of this option, with all applicable rules established by any shares of Class B Common Stock and/or options so delivered being valued at their respective Fair Market Values on the Committee;date of exercise (less the exercise price in the case of a reduction in the number of shares purchasable); and
(b) At If required by the discretion of Company, by giving satisfactory assurance in writing, signed by Optionee, that such shares are being purchased for investment only and not with a view to the Employee:
distribution thereof; provided, however, that such assurance shall be deemed inapplicable to (i) delivery any sale of full payment such shares by Optionee subject to a registration statement covering such sale, which has heretofore been (in cash or by checkmay hereafter be) for filed and become effective under the Securities Act, and is current and with respect to which no stop order suspending the effectiveness thereof has been issued, and (ii) any other sale of such shares with respect to which, in the opinion of counsel for the Company, such assurance is not required to be given in order to comply with the provisions of the Securities Act; and
(c) If Optionee is not already a party to the Shareholders Rights Agreement and Voting Agreement among the Company and its shareholders (the "Shareholders Agreement"), by executing and delivering to the Company the Shareholders Agreement as then in effect. As soon as practicable after receipt of such written notice of exercise from Optionee, the Company shall, without transfer or issue tax or other incidental expenses to Optionee, deliver to Optionee at the office of the Company, or such other place as may be mutually acceptable to the Company and Optionee, a certificate or certificates for such shares, which certificate or certificates may bear such legend or legends with respect to restriction or transfer thereof as counsel for the Option or portion is exercisedCompany deems to be required by applicable provisions of law and this Agreement; or
provided, however, that nothing herein shall be deemed to impose upon the Company any obligation to deliver any shares of Stock to Optionee if, in the opinion of counsel for the Company doing so would violate any provision of: (i) the Securities Act; (ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Securities Exchange Act of 1934, as amended amended; (the "Exchange Act"), as provided by Rule 16b-3 iii) any applicable listing requirements of the Exchange Act.
any national securities exchange; (iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
any state securities regulation or "Blue Sky" law; or (cv) A bona fide written representation and agreement in a form satisfactory requirements under any other law or regulation applicable to the Committee, signed by the Employee issuance or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common In no event shall the Company be required to take any affirmative action to comply with any of such laws, regulations or requirements, nor shall the Company be liable for any failure to deliver shares of Option Stock issued upon because such shares have not been registered or because a registration statement with respect thereto is not current or because such delivery would otherwise be in violation of any applicable law or regulation. In no event shall the exercise Company be required to issue fractional shares of the Option Stock, and this option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective exercisable except in respect of such shareswhole shares of Stock.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Stock Option Agreement (Beringer Wine Estates Holdings Inc)
Manner of Exercise. The OptionThis Option shall be exercisable during Optionee's lifetime only by Optionee, and after Optionee's death only by the person or any exercisable portion thereof, entity entitled to do so under Optionee's last will and testament or applicable to intestate law. This Option may be exercised solely by delivery with respect to the Secretary all or any part of the Company of all of the following prior Option Shares then subject to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3exercise as follows:
(a) Notice in writing signed by By giving the Employee or Company written notice of such exercise specifying the other person then entitled to exercise the Option, stating that number of the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect Shares as to which the Option is so exercised and accompanied by an amount equal to the aggregate Exercise Price of such shares, in the form of any one or portion is exercised; or
combination of (i) cash, a certified check or postal or express money order payable to the order of the Company in lawful money of the United States, (ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned previously acquired by Employee based on the Optionee, in satisfaction of all or a portion of such aggregate Exercise Price; and any Common Stock so delivered shall be valued at its Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
on the date of exercise, or (iii) delivery of a properly executed exercise notice together with such other documentation as the Committee or Board and the broker, if applicable, shall require to effect an exercise of the Option and delivery to the Company of the sale proceeds required to pay the aggregate Exercise Price.
(b) If required by the Company, by giving satisfactory assurance in writing, signed by Optionee or his or her legal representative, that such shares are not being purchased with a "net value" exercise which reduces view to the number distribution thereof; provided, however, that such assurance shall be deemed inapplicable to (1) any sale of such shares to be received upon such exercise by the Optionee subject to a "Net Number" of shares determined according to registration statement covering such sale, which has heretofore been (or may hereafter be) filed and become effective under the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Securities Act of 19341933, as amended (the "Exchange Securities Act"), as provided by Rule 16b-3 and with respect to which the registration statement is current and no stop order suspending the effectiveness thereof has been issued, and (2) any other sale of such shares with respect to which, in the opinion of counsel for the Company, such assurance is not required to be given in order to comply with the provisions of the Exchange Securities Act.
(iv) delivery . As soon as practicable after receipt of a combination such written notice from Optionee, the Company shall, without transfer or issue tax or other incidental expenses to Optionee, deliver to Optionee at the office of the consideration provided in the foregoing Sections 4.3(b)(i)Company, and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory or such other place as may be mutually acceptable to the CommitteeCompany and Optionee, signed a certificate or certificates for such shares, which certificate or certificates may bear such legend or legends with respect to restrictions on transfer as counsel for the Company deems to be required by applicable provisions of law and this Agreement; provided, however, that nothing herein shall be deemed to impose upon the Employee or other person then entitled Company any obligation to exercise such Option or portion, stating that the deliver any shares of Common Stock are being acquired to the Optionee if, in the opinion of counsel, for the Employee's own accountCompany, for investment and without doing so would violate any present intention provision of: (i) the Securities Act; (ii) the Exchange Act; (iii) any applicable listing requirements of distributing any national securities exchange; (iv) any state securities regulation or reselling said shares "Blue Sky" laws; or (v) requirements under any of them except as may be permitted under the Act and then other law or regulation applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale issuance or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing In no event shall the Company be required to take any affirmative action to comply with any of such laws, regulations or requirements, nor shall the Company be liable for any failure to deliver shares of Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, because such shares have not be required if the shares to be issued pursuant to such exercise have been registered under the Act and or because a registration statement with respect thereto is not current or because such registration is then effective delivery would otherwise be in respect violation of such sharesany applicable law or regulation.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Statutory Stock Option Agreement (Building Materials Holding Corp)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in electronic form approved by the Committee or, if no such form has been approved by the Committee, in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion, stating that the Option or a portion thereof is thereby exercised, such electronic form or notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:; and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the such Option or portion is exercised; or
(ii) surrender to With the Company consent of that number of fully paid and non-assessable the Committee, (A) shares of the Company’s Common Stock owned by Employee based on Optionee duly endorsed for transfer to the Company, or (B) shares of the Company’s Common Stock issuable to Optionee upon exercise of the Option, with a Fair Market Value (as that term is defined in on the Plan) date of option exercise equal to applicable exercise pricethe aggregate purchase price of the shares with respect to which such Option or portion is exercised; or
(iii) With the consent of the Committee, a full recourse promissory note bearing interest (at least such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to promissory note or by a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt loan from the "short-swing profit" rule Company when or where such loan or other extension of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided credit is prohibited by Rule 16b-3 of the Exchange Act.law; or;
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written or electronic representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written or electronic representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Committee, (i) shares of the Company’s Common Stock owned by Optionee duly endorsed for transfer, or, (ii) shares of the Company’s Common Stock issuable to Optionee upon exercise of the Option, valued at Fair Market Value as of the date of Option exercise, may be used to make all or part of such payment; provided that notwithstanding anything herein to the contrary, the number of shares which may be withheld with respect to the satisfaction of any such taxes shall be limited to the number of shares which have a Fair Market Value on the date of withholding equal to the aggregate amount of such withholding obligations based on the minimum applicable statutory withholding rates for federal, state and/or local income and payroll tax purposes; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Owens Illinois Inc /De/)
Manner of Exercise. The Option, or any exercisable portion thereof, This Warrant may be exercised solely by delivery the holder hereof, in whole or in part during normal business hours on any business day during the Exercise Period, by surrender of this Warrant, with the form of subscription at the end hereof (or a reasonable facsimile thereof) duly executed by such holder, to the Secretary Company at the principal office of the Company of all located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location in the United States which shall at the time be the principal office of the following prior to Company and of which the time when Company shall have notified the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice holder hereof in writing signed by the Employee or the other person then entitled to (or, if such exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying shall be in connection with all applicable rules established by the Committee;
(b) At the discretion an underwritten public offering of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned (or Other Securities) subject to this Warrant, at the location at which the underwriters shall have agreed to accept delivery thereof), accompanied by Employee based on the Fair Market Value payment of an amount obtained by multiplying (as that term is defined in the Plana) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Original Common Stock is then traded(without giving effect to any adjustment therein) designated in such form of subscription by (b) the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended Initial Exercise Price (the "Exchange ActExercise Payment"). The Exercise Payment shall be payable (i) in cash or its equivalent, as provided by Rule 16b-3 of the Exchange Act.
(ivii) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being newly acquired for upon exercise of this Warrant (valued at the Employee's own accountMarket Price), for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting (iii) by surrendering to the Company if any sale or distribution the right to purchase a number of shares of Common Stock issuable upon exercise of this Warrant (valued at the Market Price) equal to the product obtained by multiplying the number of shares of Common Stock to be purchased (including the shares by such person is contrary relating to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingsurrendered rights) by a fraction, the Committee may require an opinion numerator of counsel acceptable to it to which is the effect that Exercise Payment per share and the denominator of which is the Market Price per share, or (iv) any subsequent transfer combination of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c(i), (ii) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares(iii).
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, All or any a portion of an exercisable portion thereof, may Option shall be deemed exercised solely by upon delivery of all of the following to the Secretary of the Company of all of the following or his or her office prior to the time when Option expiration of the Option or such portion may no longer be exercised pursuant to the provisions of Article 3under Section 3.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Committee from time to time stating that the discretion of the Employee:
(i) delivery of full payment (in cash Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option Options or portion will indemnify such portion;
(b) Such representations and documents as the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee mayCommittee, in its absolute sole discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Act and Securities Act, and, any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.;
(dc) In the event that the Option or portion Options shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the OptionOptions; and
(d) Full cash payment to the Secretary of the Company for the shares with respect to which the Options, or portion thereof, are exercised. However, the Committee may, in its sole discretion, (i) allow a delay in payment up to thirty (30) days from the date the Options, or portion thereof, are exercised; (ii) allow payment, in whole or in part through the delivery of shares of Common Stock owned by the Optionee, duly endorsed for transfer to the Company with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Options or exercised portion thereof; (iii) allow payment, in whole or in part, through the surrender of shares of Common Stock then issuable upon exercise of the Options having a Fair Market Value on the date of exercise equal to the aggregate exercise price of the Options or exercised portion thereof; (iv) allow payment, in whole or in part, through the delivery of property of any kind which constitutes good and valuable consideration; (v) allow payment, in whole or in part, through the delivery of a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable upon such terms as may be prescribed by the Committee; (vi) allow payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to shares of Common Stock then issuable upon exercise of the Options, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the exercise price for the Options; or (vii) allow payment through any combination of the consideration provided in the foregoing subparagraphs (ii), (iii), (iv), (v) and (vi). In the case of a promissory note, the Committee may also prescribe the form of such note and the security to be given for such note. The Options may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Duane Reade Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, This Warrant may be exercised solely by delivery the holder hereof, in whole or in part during normal business hours on any Business Day during the Exercise Period, by surrender of this Warrant, with the form of subscription at the end hereof (or a reasonable facsimile thereof) duly executed by such holder, to the Secretary Company at the principal office of the Company of all located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location in the United States which shall at the time be the principal office of the following prior to Company and of which the time when Company shall have notified the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice holder hereof in writing signed by the Employee or the other person then entitled to (or, if such exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying shall be in connection with all applicable rules established by the Committee;
(b) At the discretion an underwritten public offering of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned (or Other Securities) subject to this Warrant, at the location at which the underwriters shall have agreed to accept delivery thereof), accompanied by Employee based on the Fair Market Value payment of an amount obtained by multiplying (as that term is defined in the Plana) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Original Common Stock is then traded(without giving effect to any adjustment therein) designated in such form of subscription by (b) the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended Initial Exercise Price (the "Exchange ActExercise Payment"). The Exercise Payment shall be payable (i) in cash or its equivalent, as provided by Rule 16b-3 of the Exchange Act.
(ivii) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being newly acquired for upon exercise of this Warrant (valued at the Employee's own accountMarket Price), for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting (iii) by surrendering to the Company if any sale or distribution the right to purchase a number of shares of Common Stock issuable upon exercise of this Warrant (valued at the Market Price) equal to the product obtained by multiplying the number of shares of Common Stock to be purchased (including the shares by such person is contrary relating to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingsurrendered rights) by a fraction, the Committee may require an opinion numerator of counsel acceptable to it to which is the effect that Exercise Payment per share and the denominator of which is the Market Price per share, or (iv) any subsequent transfer combination of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c(i), (ii) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares(iii).
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Warrant Agreement (Recoton Corp)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary's office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:Administrator; and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the such Option or portion thereof is exercised; or
(ii) surrender to With the Company consent of that number the Administrator, the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company, or, subject to the timing requirements of Section 5.4 of the Plan, the surrender of shares of Common Stock then issuable upon exercise of the Option, with a Fair Market Value (as that term is defined in on the Plan) date of Option exercise equal to applicable exercise pricethe aggregate purchase price of the shares with respect to which such Option or portion thereof is exercised; or
(iii) With the consent of the Administrator, the delivery of notice a promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable upon such terms as may be prescribed by the Administrator. The Administrator may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of a "net value" exercise which reduces the number of shares to be received upon such exercise to promissory note or by a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt loan from the "short-swing profit" rule Company when or where such loan or other extension of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided credit is prohibited by Rule 16b-3 of the Exchange Act.law; or
(iv) With the consent of the Administrator, the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to shares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the exercise price, provided that payment of such proceeds is then made to the Company upon settlement of such sale; or
(v) With the consent of the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii), (iii) and 4.3(b)(ii(iv).; and
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeAdministrator, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock stock are being acquired for the EmployeeOptionee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.;
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Administrator, (i) shares of the Company's Common Stock owned by the Optionee duly endorsed for transfer, or (ii) subject to the timing requirements of Section 5.4 of the Plan, shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the minimum amount required to be withheld based on the statutory withholding rates for federal and state tax purposes that apply to supplemental taxable income, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Stratagene Corp)
Manner of Exercise. The Option, or any exercisable portion thereof, This Warrant may be exercised solely by delivery the holder hereof, in whole or in any part (including as to any fraction of a share), during normal business hours on any Business Day until the Expiration Date by surrender of this Warrant, with the form of Subscription Notice at the end hereof (or a reasonable facsimile thereof) duly executed by such holder, to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionCompany, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
accompanied by: (i) delivery payment of full payment the aggregate Exercise Price for the Common Stock being purchased. Payment of the Exercise Price shall be made, at the option of the holder hereof, either: (A) in cash or by check) for certified or official bank check payable to the shares with respect to which order of the Option Company in the amount of the aggregate Exercise Price (or portion is exercised; or
thereof being paid in this manner), (iiB) by the surrender of indebtedness of the Company (principal and/or interest) in an amount equal to the aggregate Exercise Price (or portion thereof being paid in this manner), (C) by the surrender of Common Stock, including Common Stock obtained upon any previous exercise of this Warrant, having a Market Value (as hereinafter defined) as of the date of exercise equal to the aggregate Exercise Price (or portion thereof being paid in this manner), (D) by the surrender of other warrants of the Company, having a Warrant Value (as hereinafter defined) as of the date of exercise equal to the aggregate Exercise Price (or portion thereof being paid in this manner), or (E) by any combination of the foregoing. In lieu of paying the Exercise Price in the foregoing manner, the holder hereof may, at its option, surrender to the Company all or a specified portion of that this Warrant in exchange for a number of fully paid and non-assessable shares of Common Stock owned determined by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; ordividing
(iii1) delivery the product of notice of a "net value" exercise which reduces the (i)the number of shares to be received issuable upon exercise of this Warrant or such specified portion (as the case may be) and (ii) the difference between the Market Value of the Common Stock as of the date of exercise to a "Net Number" of shares determined according to the following formula: Net Number = , by (A x (B - C))/B. 2) such Market Value. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) foregoing, "Market Value" of the Common Stock on means, as of any date, the trading date reported closing sale price per share of the Common Stock as of the immediately preceding Business Day (provided there is no such reported closing sale price on such Business Day, then the date average of the applicable exercise of this Optionlast-reported bid and ask prices on such Business Day); and C = "Warrant Value" means, for any 2 2 warrant as of any date, the excess (if any) of the exercise price then in effect at per share thereof over the time Market Value of the Common Stock as of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Actdate.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to becomes unexercisable under Section 3.3 hereof or as otherwise provided under the provisions of Article 3Plan:
(a) Notice in writing A written notice complying with the applicable rules established by the Committee stating that the Option, or a portion thereof, is exercised. The notice shall be signed by the Employee Optionee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:portion; and
(i) delivery Full cash payment to the Secretary of full payment (in cash or by check) the Company for the shares with respect to which the Option or portion is exercised; or
(ii) surrender With the consent of the Committee, shares of the Company's Class A Common Stock which have been owned by the Optionee for a period of more than six months, duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Company, with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Committee. The Committee may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to promissory note or by a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt loan from the "short-swing profit" rule Company when or where such loan or other extension of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided credit is prohibited by Rule 16b-3 of the Exchange Act.law; or
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a the form satisfactory to attached hereto as Exhibit A (or, at the discretion of the Committee, such other form which the Committee deems satisfactory), signed by the Employee Optionee or other person then entitled to exercise such the Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of on the Option exercise does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; or with the consent of the Committee, the consideration described in clauses (ii) and (iii) of Section 4.3(b) above equal to the sums required to be withheld, may be used to make all or part of such payment; and; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 hereof by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Nextera Enterprises Inc)
Manner of Exercise. The Option, or any Any exercisable portion thereof, of the Option may be exercised solely by delivery delivering to the Office of the Secretary of the Company of at the Company’s principal office all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice notice in writing signed by the Employee Optionee or the other person Person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee; provided, that such rules do not impose any substantive requirements on the Optionee which are inconsistent with the terms of this Agreement or the Plan;
(b) At the discretion full payment of the Employee:
aggregate Option Price for the Shares with respect to which such Option or portion thereof is exercised (i) delivery of full payment (in cash (by check or by checkwire transfer or a combination of the foregoing), (ii) a “net exercise” method whereby the Option Price for the shares Shares being exercised is satisfied by the Company withholding from the Shares otherwise issuable to the Optionee, that number of Shares having an aggregate Fair Market Value, determined as of the date of exercise, equal to the product of (x) the Option Price and (y) the number of Shares with respect to which the Option or portion is being exercised; or
, (iiiii) surrender following the Lock-up Lapse Date and at all times thereafter, by delivery of an irrevocable direction to a licensed securities broker reasonably acceptable to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on (in such form as reasonably suitable to such securities broker) to sell the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according Shares subject to the following formula: Net Number = Option and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Option Price, or (A x (B - C))/B. For purposes iv) any combination of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (methods, as reported elected by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).Optionee;
(c) A a bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person Person then entitled to exercise such Option or portionportion thereof, stating that (i) unless the shares Shares are registered on a Form S-8 or the Company in its sole discretion determines that another exemption applies, the individual exercising the Option is an accredited investor (within the meaning of Common Stock Rule 501(a) of Regulation D promulgated under the Securities Act) and (ii) the Shares are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunderSecurities Act; provided, and however, that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations;
(d) unless already delivered, a written instrument (a “Joinder”) pursuant to which the Optionee agrees to be bound by the terms and conditions of the Management Stockholders Agreement to the same extent as a Management Stockholder thereunder, as provided as Annex A to the Management Stockholders Agreement;
(e) full payment to the Company or any of its Affiliates, as applicable, of all amounts which, under federal, state, local and/or non-U.S. law, such entity is required to withhold upon exercise of the Option; provided, that, at the Optionee’s election, such withholding obligation may be satisfied by (i) the Company withholding from the Shares otherwise issuable to the Optionee that number of Shares having an aggregate Fair Market Value, determined as of the date the withholding tax obligation arises, equal to such withholding tax obligation; provided, further, that, prior to the Merger Closing, the Optionee’s right to elect such Share withholding shall be subject to Section 4.6(b) of the Management Stockholders Agreement as amended by Section 5.4 of this Agreement, and, from and after the Merger Closing, the Optionee’s right to elect such Share withholding shall be subject to Section 4.3(b) of the Management Stockholders Agreement as amended by Section 5.4 of this Agreement, and in all cases subject to any limitations imposed under Delaware law or other Applicable Law and/or under the terms of any preferred stock, debt financing arrangements or other indebtedness of the Company or its Subsidiaries (including any such limitations resulting from the Company’s Subsidiaries being prohibited or prevented from distributing to the Company sufficient proceeds or funds to enable the Company to repurchase Class C Common Stock in accordance with Delaware law or other Applicable Law and/or the then applicable terms and conditions of such arrangements), or (ii) following the Lock-up Lapse Date and at all times thereafter, by delivery of an irrevocable direction to a licensed securities broker reasonably acceptable to the Company (in such form as reasonably suitable to such securities broker) to sell the Shares subject to the Option and to deliver all or part of the sale proceeds to the Company in payment of any amounts the Company is required by law to withhold upon the exercise of the Option; or (iii) any combination of the foregoing methods, as elected by the Optionee; and
(f) in the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any Person or Persons other than the Optionee, appropriate proof of the right of such Person or Persons to exercise the Option. Without limiting the generality of the foregoing, any subsequent transfer of Shares shall be subject to the terms and conditions of the Management Stockholders Agreement and the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act Securities Act, and may may, in its reasonable discretion, issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and thereinShares. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) above shall, however, not be required if the shares subsequent transfer of the Shares to be issued pursuant to such exercise have has been registered under the Act Securities Act, and such registration is then effective in respect of such shares.
Shares. Following the Lock-up Lapse Date and at all times thereafter, and notwithstanding any provision of this Section 4.3 to the contrary, (dx) In if the event Optionee elects to have all or any portion of either the Option Price and/or any applicable tax withholding satisfied through broker-assisted exercise under clause (iii) of Section 4.3(b) and/or clause (ii) of Section 4.3(e), then the Committee, in its sole discretion, may require that the Optionee elect broker-assisted exercise to pay 100% of the applicable tax withholding and Option Price for the portion of the Option being so exercised, and (y) if the Optionee elects to have all or any portion shall be exercised of the Option Price and/or any applicable tax withholding satisfied through net settlement under clause (ii) of Section 4.3(b) and/or clause (i) of Section 4.3(e), the Committee, in its sole discretion, may require that the Optionee instead satisfy all or any portion of such payment obligations pursuant to clause (iii) of Section 4.1 4.3(b) and clause (ii) of Section 4.3(e). If the Option Price and/or any applicable tax withholding is satisfied by any person an irrevocable direction to a licensed securities broker, the Optionee will be subject to the Company’s policies regarding ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ restrictions, applied in a nondiscriminatory manner, which may affect the Optionee’s ability to acquire or persons other than sell Shares or rights to Shares under the EmployeePlan (e.g., appropriate proof the Option). By acceptance of the right Option granted hereunder, the Optionee certifies the Optionee’s understanding of such person or persons and intent to exercise fully comply with the Optionstandards contained in the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies (and related policies and procedures adopted by the Company and applied in a nondiscriminatory manner).
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of all of the following on or prior to the time when the Option or such portion may no longer becomes unexercisable under Section 3.2, and the satisfaction of all of the foregoing shall be exercised pursuant to determined in the provisions discretion of Article 3the Company:
(a) Notice notice in writing signed by the Employee Optionee or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion full payment of the Employee:exercise price applicable to any Option in cash, by check, in Shares (any such Shares valued at Fair Market Value on the date of exercise) that the Optionee has held for at least six months (or such lesser period of time as may be required by the Company’s accountants), through the withholding of Shares (any such Shares valued at Fair Market Value on the date of exercise) otherwise issuable upon the exercise of the Option in a manner that is compliant with applicable law, or a combination of the foregoing methods;
(ic) delivery execution, to the extent not previously executed, of the Stockholder’s Agreement and such other documents and instruments as may be reasonably required by the Committee under the Plan;
(d) full payment to the Company of all amounts which, under federal, state or local law, it (or an Affiliate) is required to withhold upon exercise of the Option, except as otherwise agreed to by the Company under the Plan;
(e) in cash or by check) for the shares with respect to which event the Option or portion is exercisedthereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the option; orand
(iif) surrender to if so requested by the Company Committee, an irrevocable voting proxy and power of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined attorney in the Plan) equal to applicable exercise price; or
(iii) delivery of notice favor of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes designated member of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported Board. In addition, following an Initial Public Offering by the principal national securities exchange on which Company, the Common Stock is then tradedOptionee may satisfy his or her obligations under Section 4.3(b) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
and/or (c) A bona fide written representation and agreement in through the sale of Shares (or equity securities into which Shares are convertible) into the public market pursuant to a form satisfactory cashless exercise program that is compliant with applicable law, to the Committeeextent the sale of such Shares (or equity securities, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be applicable) is permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulationsStockholder’s Agreement. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Securities Act of 1933, as amended, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesShares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may Each exercise of this Option shall be exercised solely by delivery ------------------ means of a written notice of exercise delivered to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the OptionCompany, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces specifying the number of shares to be received purchased and accompanied by payment to the Company of the full purchase price of the shares to be purchased solely (i) in cash or by check payable to the order of the Company, (ii) by delivery of shares of Common Stock of the Company already owned by, and in the possession of, Optionee, valued at their fair market value, as determined in accordance with Section 4 hereof, or (iii) (x) by a promissory note made by Optionee in favor of the Company, upon such the terms and conditions determined by the Committee including, to the extent the Committee determines appropriate, a security interest in the shares issuable upon exercise to or other property, or (y) through a "Net Numbercashless exercise," in either case complying with applicable law (including, without limitation, state and federal margin requirements), or any combination thereof. Shares of shares Common Stock used to satisfy the exercise price of this Option shall be valued at their fair market value determined according to (in accordance with Section 4 hereof) on the following formula: Net Number = date of exercise (A x (B - C))/B. For purposes or if such date is not a business day, as of the foregoing formula: A = close of the business day immediately preceding such date). This Option may not be exercised for a fraction of a share and no partial exercise of this Option may be for less than (a) one hundred (100) shares or (b) the total number of shares with respect then eligible for exercise, if less than one hundred (100) shares. This Option may be exercised (i) during the lifetime of Optionee only by Optionee; (ii) to which this Option is then being exercised; B = the last reported sale price (as reported extent permitted by the principal national securities exchange on which Committee or by the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise terms of this OptionAgreement, Optionee's spouse if such spouse obtained the Option pursuant to a qualified domestic relations order as defined by the Code or Title I of ERISA, or the rules thereunder ("Qualified Domestic Relations Order"); and C = (iii) after Optionee's death by his or her transferees by will or the exercise price then in effect at the time laws of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Actdescent or distribution.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Any exercisable portion of the Option or the entire Option, or any exercisable portion thereofif then wholly exercisable, may be exercised from time to time solely by delivery delivering through the electronic or telephonic system maintained by the third party designated by the Committee (or its Delegee) to administer the Secretary of Plan (the Company of “Stock Plan Award Administrator”) (or such other method approved by the Committee (or its Delegee)) all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by Written notice from the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion number of the Employee:
(i) delivery of full payment (in cash or by check) for the shares Shares with respect to which the Option is being exercised, in such form as the Committee (or portion is exercised; orits Delegee) shall establish;
(iib) surrender to Full payment of the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces Exercise Price for the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares Shares with respect to which this the Option is then being exercised; B = the last reported sale price exercised (as reported i) in cash, (ii) by the principal national securities exchange surrendering Shares (valued at Fair Market Value on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of exercise) owned by the applicable Optionee, (iii) by withholding Shares (valued at Fair Market Value on the date of exercise) otherwise issuable upon the exercise of this the Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of by broker-assisted exercise (in accordance with rules established by the Committee or its Delegee), or (v) a combination of any of the consideration provided above methods, in each case unless determined otherwise by the foregoing Sections 4.3(b)(iCommittee (or its Delegee), in accordance with applicable law and 4.3(b)(ii).the requirements established by the Committee (or its Delegee) from time to time;
(c) Full payment to satisfy the minimum withholding tax obligation with respect to which such Option or portion thereof is exercised, unless otherwise determined by the Committee (or its Delegee), in similar methods as provided in Section 4.3(b) and in accordance with applicable law and the requirements established by the Committee (or its Delegee) from time to time;
(d) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeCommittee (or its Delegee), signed or acknowledged by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock Shares are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee (or its Delegee) may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee (or its Delegee) may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act Act, and may issue stop-transfer orders covering such sharesShares. The Committee (or its Delegee) may cause a legend or legends to be placed on any Share certificates evidencing Common Stock Shares issued upon the on exercise of the Option shall bear an Option, or if such Shares are issued in book-entry or electronic form, otherwise denote such Shares, to make appropriate legend referring reference to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a written notice includes notice submitted through the event electronic or telephonic system maintained by the Option Stock Plan Award Administrator or portion shall be exercised through other means pursuant to Section 4.1 procedures approved by any person the Committee (or persons other than its Delegee), and a representation or agreement is considered acknowledged if it is signed or submitted electronically or telephonically in accordance with approved procedures and such electronic or telephonic acknowledgement will have the Employeesame force and effect as a manual signature. Notwithstanding the above, appropriate proof the Committee (or its Delegee) may approve alternative procedures for exercise and for payment of the right related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of such person or persons to exercise the Optionexercise.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then then-entitled to exercise the Option, Option or portion stating that the Option or a portion thereof is thereby exercised, such which notice complying shall comply with all applicable rules established by the Committee;
(b) At the discretion of the Employee:Board; and
(i) delivery Full cash payment to the Secretary of full payment (in cash or by check) the Company for the shares with respect to which the such Option or portion is exercised; or;
(ii) surrender to With the Company consent of that number of fully paid and non-assessable the Board, (A) shares of the Company's Common Stock owned by Employee based on the Optionee, duly endorsed for transfer to the Company, with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise price; orprice of the Option or exercised portion thereof, or (B) shares of the Company's Common Stock issuable to the Optionee upon exercise of the Option, with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof;
(iii) With the consent of the Board, a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Board. The Board may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to promissory note or by a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt loan from the "short-swing profit" rule Company when or where such loan or other extension of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided credit is prohibited by Rule 16b-3 of the Exchange Act.law;
(iv) delivery With the consent of a the Board, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii), (iii) and 4.3(b)(ii(iv).; and
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeBoard, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Board may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Board may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall may bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Rental Service Corp)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such A written notice complying with all the applicable rules established by the Committee;
(b) At Board stating that the discretion of the Employee:
(i) delivery of full payment (in cash Option, or by check) for the shares with respect to which the Option or a portion thereof, is exercised; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of . The notice of a "net value" exercise which reduces the number of shares to shall be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the Option or portion will indemnify such portion; and
(b) Full cash payment to the Secretary of the Company against and hold it free and harmless for the shares with respect to which the Option, or portion thereof, is exercised. However, the Board may in its discretion (i) allow a delay in payment up to thirty (30) days from any lossthe date the Option, damageor portion thereof, expense is exercised; (ii) allow payment, in whole or liability resulting in part, through the delivery of shares of Common Stock owned by the Optionee, duly endorsed for transfer to the Company if any sale or distribution with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; (iii) allow payment, in whole or in part, through the surrender of shares by such person is contrary of Common Stock then issuable upon exercise of the Option having a Fair Market Value on the date of Option exercise equal to the representation aggregate exercise price of the Option or exercised portion thereof; (iv) allow payment, in whole or in part, through the delivery of property of any kind which constitutes good and agreement referred valuable consideration; (v) allow payment, in whole or in part, through the delivery of a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code) and payable upon such terms as may be prescribed by the Board; (vi) allow payment, in whole or in part, through the delivery of a notice that the Optionee has placed a market sell order with a broker with respect to aboveshares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; or (vii) allow payment through any combination of the consideration provided in the foregoing subparagraphs (ii), (iii), (iv), (v) and (vi). In the case of a promissory note, the Board may also prescribe the form of such note and the security to be given for such note. The Committee mayOption may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; and
(c) Such representations and documents as the Board, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and necessary or advisable to effect compliance with all applicable provisions of the Securities Act of 1933, as amended, and any other federal or state securities laws or regulations. Without limiting the generality of the foregoingThe Board may, the Committee may require an opinion of counsel acceptable in its absolute discretion, also take whatever additional actions it deems appropriate to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate the Act such compliance, including, without limitation, placing legends on share certificates and may issue issuing stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring notices to the provisions of this Section 4.3(c) agents and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.registrars; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Independent Director Non Qualified Stock Option Agreement (FTD Group, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of or his or her designee all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2 or Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeCompany;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by checkcheck or by a combination thereof) for the shares Shares with respect to which the such Option or portion thereof is exercised (provided, however, that full payment is deemed made if the Company receives cash in respect of the exercise price no later than the date on which the Company or its agent delivers or releases Shares to the Optionee or his agent, which date shall not be later than two (2) business days following the date on which the Option is exercised; or
, in the event of a cashless exercise via a third party in a manner that is compliant with applicable law) or (ii) surrender notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value this subsection (as that term is defined in the Plan) equal to applicable exercise price; orb);
(iiii) delivery of notice of Full payment (in cash or by check or by a "net value" exercise which reduces combination thereof) to satisfy the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares minimum withholding tax obligation with respect to which this such Option or portion thereof is then being exercised; B = exercised (provided, however, that full payment is deemed made if the last reported sale price (as reported by Company receives such payment no later than the principal national securities exchange date on which the Common Stock Company must remit such withholding to the Internal Revenue Service in the event of a cashless exercise via a third party in a manner that is then tradedcompliant with applicable law); (ii) notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of this subsection (c); or (iii) notice in writing to the Common Stock Company at least ten (10) days (or such shorter period approved by the Committee) prior to date of exercise that the Optionee elects to pay the withholding tax obligation with previously owned Shares and, subject to all applicable rules established by the Committee, the delivery (or deemed delivery, as allowed by the Committee) on the trading date immediately preceding or prior to the date of the applicable exercise of this Option; and C = such Shares having a Fair Market Value equal to the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.withholding amount;
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(cd) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares Shares of Common Stock are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act and may issue stop-transfer orders covering such sharesShares. Share certificates evidencing Common Stock stock issued upon the on exercise of the Option shall may bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a notice in writing to the event Company includes notice in writing to a third party engaged by the Option Company to provide administrative services under the Plan and also includes notice via electronic or portion telephone enabled systems pursuant to approved procedures and a notice is considered signed if it is signed electronically in accordance with approved procedures and such electronic signature will have the same force and effect as a manual signature. Notwithstanding the above, the Committee may approve alternative procedures for exercise and alternative procedures for payment of the related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of exercise. No alternative procedure for exercise shall be exercised pursuant to Section 4.1 by any person or persons other than effective unless the Employee, appropriate proof of the right of such person or persons to Optionee completes all actions required for exercise the Optionand payment.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
. Such notice shall be substantially in the form attached as Attachment III to the Grant Notice (b) At or such other form as is prescribed by the discretion of the Employee:Committee); and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender to With the Company consent of that number the Committee, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this shares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided, that payment of such proceeds is then being exercised; B = made to the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time Company upon settlement of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option. With the consent of the Committee, (i) shares of Common Stock owned by the Optionee for at least six months duly endorsed for transfer or (ii) shares of Common Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Company’s Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 2.3:
(a) Notice in writing A written notice complying with the applicable rules established by the Committee stating that the Option, or a portion thereof, is exercised. The notice shall be signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;portion.
(b) At Full payment to the discretion of the Employee:
(i) delivery of full payment (in cash or by check) Company for the shares with respect to which the such Option or portion is exercised, which shall be:
(i) In cash; or
(ii) With the consent of the Committee, shares of the Company’s Common Stock owned by the Employee (and, if acquired from the Company, held for at least six months), duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal to the aggregate purchase price of the shares as to which the Option is exercised; or
(iiiii) surrender With the consent of the Committee, by delivery of a notice that the Employee has placed a market sell order with a broker with respect to shares of the Company’s Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes satisfaction of the foregoing formula: A = purchase price of the total number of shares with respect as to which this the Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that as the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems discretion shall determine is necessary or appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act of 1933 and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on exercise of the Option does not violate the Securities Act of 1933, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.agreements
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Rentrak Corp)
Manner of Exercise. The An Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of or his office or the Company of Company’s agent, if so directed all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
(i) delivery of full payment (in cash or by check) for the shares with respect to which the Option or portion is exercised; or
(ii) surrender Committee and made available to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value Optionee (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon or such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise the Option);
(b) Full payment (in cash, by cheque, electronic transfer, by way of a cashless exercise with a broker as approved by the Company, by way of surrender of Shares to the Company, by withholding in Shares to be issued upon Option exercise as approved by the Company in its sole discretion, or by a combination thereof) of the Option Price for the Shares with respect to which such Option or portion will indemnify thereof is exercised, provided the Company against Shares surrendered or withheld have a Fair Market Value (determined as of the day preceding the date of exercise) that is not less than such Option Price or part thereof and hold it free and harmless from any loss, damage, expense or liability resulting Tax-Related Items (as defined in (d) below);
(c) Full payment to the Company if or any sale Subsidiary, by which the Optionee is employed (the “Employer”) of all income tax, payroll tax, payment on account, and social insurance contributions amounts (“Tax”) which, under federal, state, local or distribution foreign law, it is required to withhold upon exercise of the shares Option; and
(d) In a case where any Employer is obliged to (or would suffer a disadvantage if it were not to) account for any Tax (in any jurisdiction) for which the Optionee is liable by such person is contrary virtue of the Optionee’s participation in the Plan and/or any social security contributions recoverable from and legally applicable to the representation and agreement referred Optionee (the “Tax-Related Items”), the Optionee will pay or make adequate arrangements satisfactory to abovethe Company and/or the Employer to satisfy all Tax-Related Items. The Committee mayIn this regard, in its absolute discretion, take whatever additional actions it deems appropriate the Optionee may elect to ensure satisfy the observance and performance of such representation and agreement and obligations with regard to effect compliance with the Act and any other federal all Tax-Related Items by one or state securities laws or regulations. Without limiting the generality a combination of the foregoing, following:
(i) withholding from the Committee may require an opinion of counsel acceptable to it Optionee’s wages or other cash compensation paid to the effect that any subsequent transfer Optionee by the Company and/or the Employer; or
(ii) withholding from proceeds of the shares acquired upon the sale of Shares issued at exercise of the Option does not violate either through a voluntary sale or through a mandatory sale arranged by the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock Company (on the Optionee’s behalf pursuant to this authorization); or
(iii) withholding in Shares to be issued upon the at exercise of the Option shall bear an appropriate legend referring Option, to the provisions extent the Company permits this method of this Section 4.3(c) and withholding. To avoid any negative accounting treatment, the agreements herein and thereinCompany may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding amounts or other applicable withholding rates. The written representation and agreement referred If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Optionee is deemed to have been issued the full number of Shares subject to the exercised Option, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Optionee’s participation in the first sentence Plan. Finally, the Optionee shall pay to the Company or the Employer any amount of this Section 4.3(c) shall, however, Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Optionee’s participation in the Plan that cannot be required if satisfied by the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such sharesmeans previously described.
(de) In the event the Option or any portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option. 7 Without limiting the generality of the foregoing, the Committee may, prior to exercise, require an opinion of counsel reasonably acceptable to it to the effect that any subsequent transfer of Shares acquired on exercise of an Option does not violate the Exchange Act and may issue stop-transfer orders in the U.S. covering such Shares.
Appears in 1 contract
Sources: Share Option Award Agreement (Willis Group Holdings PLC)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary's office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
. Such notice shall be substantially in the form attached as Exhibit B (b) At or such other form as is prescribed by the discretion Committee); and one or more of the Employeefollowing:
(i) delivery In cash, by certified or bank check or other instrument acceptable to the Committee;
(ii) In the form of full shares of Stock that are not then subject to restrictions under any plan and that have been held by the optionee for at least six (6) months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment applying generally accepted accounting principles), if permitted by the Committee in its discretion. Such surrendered shares shall be valued at Fair Market Value on the exercise date; or
(iii) In the sole discretion of the Committee, at any time during which the Stock is traded on a national stock exchange or quotation system, by the optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company to pay the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure.
(i) Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender With the consent of the Committee, such payment may be made, in whole or in part, through the delivery of shares of Stock which have been owned by the Optionee for at least six months, duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is shares of Stock then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the EmployeeOptionee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act and such registration is then effective in respect of such shares.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.issue
Appears in 1 contract
Sources: Stock Option Agreement (Gentek Inc)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of the Company of or his or her designee all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the CommitteeCompany;
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by checkcheck or by a combination thereof) for the shares Shares with respect to which the such Option or portion thereof is exercised (provided, however, that full payment is deemed made if the Company receives cash in respect of the exercise price no later than the date on which the Company or its agent delivers or releases Shares to the Optionee or his or her agent, which date shall not be later than two (2) business days following the date on which the Option is exercised; or
, in the event of a cashless exercise via a third party in a manner that is compliant with applicable law) or (ii) surrender notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value this subsection (as that term is defined in the Plan) equal to applicable exercise price; orb);
(iiii) delivery of notice of Full payment (in cash or by check or by a "net value" exercise which reduces combination thereof) to satisfy the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares minimum withholding tax obligation with respect to which this such Option or portion thereof is then being exercised; B = exercised (provided, however, that full payment is deemed made if the last reported sale price (as reported by Company receives such payment no later than the principal national securities exchange date on which the Common Stock Company must remit such withholding to the Internal Revenue Service in the event of a cashless exercise via a third party in a manner that is then tradedcompliant with applicable law); (ii) notice in writing that the Optionee elects to have the number of Shares that would otherwise be issued to the Optionee reduced by a number of Shares having an equivalent Fair Market Value to the payment that would otherwise be made by the Optionee to the Company pursuant to clause (i) of this subsection (c); or (iii) notice in writing to the Common Stock Company at least ten (10) days (or such shorter period approved by the Committee) prior to date of exercise that the Optionee elects to pay the withholding tax obligation with previously owned Shares and, subject to all applicable rules established by the Committee, the delivery (or deemed delivery, as allowed by the Committee) on the trading date immediately preceding or prior to the date of the applicable exercise of this Optionsuch Shares having a Fair Market Value equal to the withholding amount; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(cd) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares Shares of Common Stock are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act Act, and may issue stop-transfer orders covering such sharesShares. Share certificates evidencing Common Stock stock issued upon the on exercise of the Option shall may bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a notice in writing to the event Company includes notice in writing to a third party engaged by the Option Company to provide administrative services under the Plan and also includes notice via electronic or portion telephone enabled systems pursuant to approved procedures, and a notice is considered signed if it is signed electronically in accordance with approved procedures and such electronic signature will have the same force and effect as a manual signature. Notwithstanding the above, the Committee may approve alternative procedures for exercise and alternative procedures for payment of the related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of exercise. No alternative procedure for exercise shall be exercised pursuant to Section 4.1 by any person or persons other than effective unless the Employee, appropriate proof of the right of such person or persons to Optionee completes all actions required for exercise the Optionand payment.
Appears in 1 contract
Manner of Exercise. The Any exercisable portion of the Option or the entire Option, or any exercisable portion thereofif then wholly exercisable, may be exercised from time to time solely by delivery delivering through the electronic or telephonic system maintained by the third party designated by the Committee (or its Delegee) to administer the Secretary of Plan (the Company of “Stock Plan Award Administrator”) (or such other method approved by the Committee (or its Delegee)) all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.2:
(a) Notice in writing signed by Written notice from the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion number of the Employee:
(i) delivery of full payment (in cash or by check) for the shares Shares with respect to which the Option is being exercised, in such form as the Committee (or portion is exercised; orits Delegee) shall establish;
(iib) surrender to Full payment of the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces Exercise Price for the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares Shares with respect to which this the Option is then being exercised; B = the last reported sale price exercised (as reported i) in cash, (ii) by the principal national securities exchange surrendering Shares (valued at Fair Market Value on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of exercise) owned by the applicable Optionee, (iii) by withholding Shares (valued at Fair Market Value on the date of exercise) otherwise issuable upon the exercise of this the Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of by broker-assisted exercise (in accordance with rules established by the Committee or its Delegee), or (v) a combination of any of the consideration provided above methods, in each case unless determined otherwise by the foregoing Sections 4.3(b)(iCommittee (or its Delegee), in accordance with applicable law and 4.3(b)(ii).the requirements established by the Committee (or its Delegee) from time to time;
(c) Full payment to satisfy the minimum withholding tax obligation with respect to which such Option or portion thereof is exercised, unless otherwise determined by the Committee (or its Delegee), in similar methods as provided in Section 4.3(b) and in accordance with applicable law and the requirements established by the Committee (or its Delegee) from time to time;
(d) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeCommittee (or its Delegee), signed or acknowledged by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock Shares are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee (or its Delegee) may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee (or its Delegee) may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act Act, and may issue stop-transfer orders covering such sharesShares. The Committee (or its Delegee) may cause a legend or legends to be placed on any Share certificates evidencing Common Stock Shares issued upon the on exercise of the Option shall bear an Option, or if such Shares are issued in book-entry or electronic form, otherwise denote such Shares, to make appropriate legend referring reference to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a written notice includes notice submitted through the event electronic or telephonic system maintained by the Option Stock Plan Award Administrator or portion shall be exercised through other means pursuant to Section 4.1 procedures approved by any person the Committee (or persons other than its Delegee), and a representation or agreement is considered acknowledged if it is signed or submitted electronically or telephonically in accordance with approved procedures and such electronic or telephonic acknowledgement will have the Employeesame force and effect as a manual signature. Notwithstanding the above, appropriate proof the Committee (or its Delegee) may approve alternative procedures for exercise and for payment of the right related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of such person or persons to exercise the Optionexercise.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or the Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Holder or the any other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Administrator. Such notice shall be substantially in the form attached as Exhibit B to the Grant Notice (or such other form as is prescribed by the Administrator); and
(b) At the discretion Subject to Section 5.1(c) of the EmployeePlan:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised; or
(ii) surrender With the consent of the Administrator, such payment may be made, in whole or in part, through the delivery of shares of Stock which have been owned by Holder for at least six (6) months, duly endorsed for transfer to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that Holder has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this Option is shares of Stock then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) issuable upon exercise of the Common Stock on Option, and that the trading date immediately preceding the date broker has been directed to pay a sufficient portion of the applicable net proceeds of the sale to the Company in satisfaction of the Option exercise of this Option; and C = the exercise price then in effect at the time price, provided, that payment of such exercise. It proceeds is specifically intended that any made to the Company upon settlement of such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Administrator, any combination of the consideration provided in the foregoing Sections 4.3(b)(iparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the CommitteeAdministrator, signed by Holder or the Employee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for the Employee's ▇▇▇▇▇▇’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Holder or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) The receipt by the Company of full payment for such shares, including payment of any applicable withholding tax, which in the discretion of the Administrator may be in the form of consideration used by Holder to pay for such shares under Section 4.3(b), subject to Section 15.3 of the Plan; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeHolder, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing A written notice complying with the applicable rules established by the Committee stating that the Option, or a portion thereof, is exercised. The notice shall be signed by the Employee Optionee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;portion; and
(b) At the discretion of the Employee:
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option, or portion thereof, is exercised:
(i) in cash or cash equivalents;
(ii) through the delivery of shares of Common Stock which have been owned by the Optionee for at least six months, duly endorsed for transfer to the Company with a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof;
(iii) by delivering a written direction to the Company that the Option be exercised pursuant to a “cashless” exercise/sale procedure through a licensed broker acceptable to the Company whereby the stock certificate or certificates for the shares for which the Option is exercisedexercised will be delivered to such broker as the agent for the person exercising the Option and the broker will deliver to the Company cash (or cash equivalents acceptable to the Company) equal to the option price for the Shares purchased pursuant to the exercise of the Option, plus the amount (if any) of Federal and other taxes that the Company may, in its judgment, be required to withhold with respect to the exercise of the Option; or
(ii) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of by a combination of the consideration provided methods described in the foregoing Sections 4.3(b)(i(i), (ii) and 4.3(b)(ii(iii).
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's such person’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Golden Telecom Inc)
Manner of Exercise. The In order to exercise this Option, or any exercisable portion thereof, may be exercised solely by delivery the Participant shall deliver to the Secretary Chief Financial Officer or other designated officer of the Company of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:
(a) Notice payment in writing signed by the Employee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion of the Employee:
full for (i) delivery the shares being purchased and (ii) unless other arrangements have been made with the Committee, any required withholding taxes. The payment of full payment (the exercise price for each Option shall be either in cash or by checkcheck payable and acceptable to the Company; provided, however, with the consent of the Committee, which consent may be granted or withheld in the Committee’s sole discretion and subject to any instructions or conditions as the Committee may impose, payment of the exercise price and/or withholding may be made by (x) tendering to the Company shares of Common Stock having an aggregate Fair Market Value as of the date of exercise that is not greater than the full exercise price for the shares with respect to which the Option is being exercised and the amount required to be withheld, or portion is exercised; or
(iiy) surrender to the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).
(c) A bona fide written representation and agreement in a form satisfactory to the Committee, signed by the Employee or other person then entitled to exercise such Option or portion, stating that may deliver certificates for the shares of Common Stock are being acquired for the Employee's own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act and then applicable rules and regulations thereunder, and that the Employee or other person then entitled to exercise which the Option or portion will indemnify the Company against and hold it free and harmless from any lossis being exercised to a broker for sale on behalf of Participant, damage, expense or liability resulting provided that Participant has irrevocably instructed such broker to remit directly to the Company if any on Participant’s behalf from the proceeds of such sale or distribution the full amount of the shares by such person is contrary exercise price, plus all required withholding taxes. In the event that Participant, with the consent of the Committee, elects to make payment as allowed under clause (x) above, the representation and agreement referred to above. The Committee may, in its absolute discretionupon confirming that Participant owns the number of shares being tendered, take whatever additional actions it deems appropriate authorize the issuance of a new certificate for the number of shares being acquired pursuant to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the exercise of the Option does not violate Option, less the Act and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued number of shares being tendered upon the exercise of exercise, and return to Participant (or not require surrender of) the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(c) and the agreements herein and therein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) shall, however, not be required if certificate for the shares to be issued pursuant to such exercise have been registered under being tendered upon the Act and such registration is then effective in respect of such sharesexercise.
(d) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Sources: Nonqualified Stock Option Agreement (Western Refining, Inc.)
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 3.3:
(a) Notice in writing A written notice complying with the applicable rules established by the Administrator stating that the Option, or a portion thereof, is exercised. The notice shall be signed by the Employee Optionee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;portion; and
(b) At Full cash payment to the discretion Secretary of the Employee:
(i) delivery of full payment (in cash or by check) Company for the shares with respect to which the such Option or portion is exercised; or
(i) With the consent of the Administrator, a delay in payment of up to 30 days from the date the Option, or portion thereof, is exercised; or
(ii) surrender to With the Company consent of that number of fully paid and non-assessable the Administrator, (A) shares of the Company’s Common Stock owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company, with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise price of the Option or exercised portion thereof, or (B) shares of the Company’s Common Stock issuable to the Optionee upon exercise of the Option, with a Fair Market Value on the date of exercise of the Option or any portion thereof equal to the aggregate exercise price of the Option or exercised portion thereof; or
(iii) With the consent of the Administrator, a full recourse promissory note bearing interest (at no less than such rate as shall then preclude the imputation of interest under the Code or successor provision) and payable upon such terms as may be prescribed by the Administrator. The Administrator may also prescribe the form of such note and the security to be given for such note. The Option may not be exercised, however, by delivery of a promissory note or by a loan from the Company when or where such loan or other extension of credit is prohibited by law; or
(iv) With the consent of the Administrator, property of any kind which constitutes good and valuable consideration; or
(v) With the consent of the Administrator, a notice that the Optionee has placed a market sell order with a broker with respect to shares of the Company’s Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; or
(iiivi) delivery of notice of a "net value" exercise which reduces With the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes consent of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that Administrator, any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii), (iii), (iv) and 4.3(b)(ii(v).; and
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeAdministrator, signed by the Employee Optionee or other person then entitled to exercise such Option or portion, stating that the shares of Common Stock stock are being acquired for the Employee's his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee Administrator may, in its absolute sole discretion, take whatever additional actions it deems appropriate to ensure insure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee Administrator may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the this Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (c) shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option; with the consent of the Administrator in the form of, (i) shares of the Company’s Common Stock owned by the Optionee, duly endorsed for transfer, with a Fair Market Value on the date of delivery equal to the sums required to be withheld, or (ii) shares of the Company’s Common Stock issuable to the Optionee upon exercise of the Option with a Fair Market Value on the date of exercise of the Option or any portion thereof equal to the sums required to be withheld, may be used to make all or part of such payment; provided that the number of shares of Common Stock which may be withheld with respect to the issuance, vesting, exercise or payment of any Option (or which may be repurchased from the Optionee of such Option within six months after such shares of Common Stock were acquired by the Optionee from the Company) in order to satisfy the Optionee’s federal and state income and payroll tax liabilities with respect to the issuance, vesting, exercise or payment of the Option shall be limited to the number of shares which have a Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal and state tax income and payroll tax purposes that are applicable to such supplemental taxable income; and
(e) In the event the Option or portion shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Any exercisable portion of the Option or the entire Option, or any exercisable portion thereofif then wholly exercisable, may be exercised from time to time solely by delivery delivering through the electronic or telephonic system maintained by the third party designated by the Committee (or its Delegee) to administer the Secretary of Plan (the Company of “Stock Plan Award Administrator”) (or such other method approved by the Committee (or its Delegee)) all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3:becomes unexercisable under Section 3.2:
(a) Notice in writing signed by Written notice from the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At the discretion number of the Employee:
(i) delivery of full payment (in cash or by check) for the shares Shares with respect to which the Option is being exercised, in such form as the Committee (or portion is exercised; orits Delegee) shall establish;
(iib) surrender to Full payment of the Company of that number of fully paid and non-assessable shares of Common Stock owned by Employee based on the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces Exercise Price for the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares Shares with respect to which this the Option is then being exercised; B = the last reported sale price exercised (as reported i) in cash, (ii) by the principal national securities exchange surrendering Shares (valued at Fair Market Value on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of exercise) owned by the applicable Optionee, (iii) by withholding Shares (valued at Fair Market Value on the date of exercise) otherwise issuable upon the exercise of this the Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.
(iv) delivery of by broker-assisted exercise (in accordance with rules established by the Committee or its Delegee), or (v) a combination of any of the consideration provided above methods, in each case unless determined otherwise by the foregoing Sections 4.3(b)(iCommittee (or its Delegee), in accordance with applicable law and 4.3(b)(ii).the requirements established by the Committee (or its Delegee) from time to time;
(c) Full payment to satisfy the minimum withholding tax obligation with respect to which such Option or portion thereof is exercised, unless otherwise determined by the Committee (or its Delegee), in similar methods as provided in Section 4.3(b) and in accordance with applicable law and the requirements established by the Committee (or its Delegee) from time to time;
(d) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeCommittee (or its Delegee), signed or acknowledged by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock Shares are being acquired for the Employee's his or her own account, for investment and without any present intention of distributing or reselling said shares Shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the “Act”), and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares Shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the Committee (or its Delegee) may, in its absolute reasonable discretion, take whatever additional actions it deems appropriate reasonably necessary to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee (or its Delegee) may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares Shares acquired upon the on exercise of the Option does not violate the Act Act, and may issue stop-transfer orders covering such sharesShares. The Committee (or its Delegee) may cause a legend or legends to be placed on any Share certificates evidencing Common Stock Shares issued upon the on exercise of the Option shall bear an Option, or if such Shares are issued in book-entry or electronic form, otherwise denote such Shares, to make appropriate legend referring reference to the provisions of this Section 4.3(csubsection (d) above and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(csubsection (d) above shall, however, not be required if the shares Shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In Shares. For purposes of this Section 4.3, a written notice includes notice submitted through the event electronic or telephonic system maintained by the Option Stock Plan Award Administrator or portion shall be exercised through other means pursuant to Section 4.1 procedures approved by any person the Committee (or persons other than its Delegee), and a representation or agreement is considered acknowledged if it is signed or submitted electronically or telephonically in accordance with approved procedures and such electronic or telephonic acknowledgement will have the Employeesame force and effect as a manual signature. Notwithstanding the above, appropriate proof the Committee (or its Delegee) may approve alternative procedures for exercise and for payment of the right related exercise price and withholding amounts provided such alternative procedures are established in writing prior to the date of such person or persons to exercise the Option.exercise.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of or the Company Secretary’s office of all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Employee Optionee or the other person then entitled to exercise the OptionOption or portion thereof, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;
(b) At . Such notice shall be in such form as is prescribed by the discretion of the Employee:Committee; and
(i) delivery of full Full payment (in cash or by check) for the shares with respect to which the Option or portion thereof is exercised, to the extent permitted under applicable laws; or
(ii) surrender to With the Company consent of that number the Committee, such payment may be made, in whole or in part, through the delivery of fully paid and non-assessable shares of Common Stock which have been owned by Employee based on the Optionee for at least six months, duly endorsed for transfer to the Company with a Fair Market Value (as that term is defined in on the Plan) date of delivery equal to applicable the aggregate exercise priceprice of the Option or exercised portion thereof; or
(iii) To the extent permitted under applicable laws, through the delivery of a notice of that the Optionee has placed a "net value" exercise which reduces the number of shares to be received upon such exercise to market sell order with a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares broker with respect to which this shares of Common Stock then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price, provided, that payment of such proceeds is then being exercised; B = made to the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time Company upon settlement of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), as provided by Rule 16b-3 of the Exchange Act.sale; or
(iv) delivery With the consent of a the Committee, any combination of the consideration provided in the foregoing Sections 4.3(b)(isubparagraphs (i), (ii) and 4.3(b)(ii(iii).; and
(c) A bona fide written representation and agreement agreement, in a such form satisfactory to as is prescribed by the Committee, signed by the Employee Optionee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock are being acquired for Rev. 3 10/4/06 the Employee's Optionee’s own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act and then applicable rules and regulations thereunder, and that the Employee Optionee or other person then entitled to exercise the such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Securities Act and any other federal or state securities laws or regulations. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on an Option exercise of the Option does not violate the Act Securities Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) and the agreements herein and thereinherein. The written representation and agreement referred to in the first sentence of this Section 4.3(c) subsection (c), and the share legend referred to immediately above, shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Securities Act, and such registration is then effective in respect of such shares.; and
(d) Full payment to the Company (or other employer corporation) of all amounts which, under federal, state or local tax law, it is required to withhold upon exercise of the Option. With the consent of the Committee, (i) shares of Common Stock owned by the Optionee for at least six months duly endorsed for transfer or (ii) shares of Common Stock issuable to the Optionee upon exercise of the Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum sums required to be withheld, may be used to make all or part of such payment; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the EmployeeOptionee, appropriate proof of the right of such person or persons to exercise the Option.
Appears in 1 contract
Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery delivering to the Secretary of or the Company of Secretary's office all of the following prior to the time when the Option or such portion may no longer be exercised pursuant to the provisions of Article 3becomes unexercisable under Section 2.5 or Section 3.2:
(a) Notice in writing signed by the Employee Grantee or the other person then entitled to exercise the Option, stating that the Option or a portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee;Company.
(b) At the discretion Full payment of the Employee:
(i) delivery of full payment (Exercise Price in cash or by check) certified bank check for the shares with respect to which the such Option or portion thereof is exercised; exercised or
, if acceptable to the Company, (iii) (A) by surrender or delivery to the Company of that number of fully paid and non-assessable shares of equal to or less than the Exercise Price or (B) in the event the Company registers its Common Stock owned by Employee based on under the Fair Market Value (as that term is defined in the Plan) equal to applicable exercise price; or
(iii) delivery of notice of a "net value" exercise which reduces the number of shares to be received upon such exercise to a "Net Number" of shares determined according to the following formula: Net Number = (A x (B - C))/B. For purposes of the foregoing formula: A = the total number of shares with respect to which this Option is then being exercised; B = the last reported sale price (as reported by the principal national securities exchange on which the Common Stock is then traded) of the Common Stock on the trading date immediately preceding the date of the applicable exercise of this Option; and C = the exercise price then in effect at the time of such exercise. It is specifically intended that any such exercise contemplated hereunder be exempt from the "short-swing profit" rule of Section 16(b) of the Exchange Securities Act of 19341933, as amended (the "Exchange Act"), as provided by Rule 16b-3 registration on form S-8 (or any successor form), through the written election of the Exchange Act.
Grantee to have shares of such Common Stock withheld by the Company from the shares otherwise to be received, with such withheld shares having an aggregate Fair Market Value on the date of exercise equal to or less than the Exercise Price, plus (ivii) delivery of a combination of the consideration provided in the foregoing Sections 4.3(b)(i), and 4.3(b)(ii).cash or certified bank check for any difference;
(c) A bona fide written representation and agreement agreement, in a form satisfactory to the CommitteeCompany, signed by the Employee Grantee or other person then entitled to exercise such Option or portionportion thereof, stating that the shares of Common Stock stock are being acquired for the EmployeeGrantee's own account, for investment purposes only and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Act Act, and then applicable rules and regulations thereunder, and that the Employee Grantee or other person then entitled to exercise the such Option or portion portions thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or of liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above. The ; provided, however, that the --------- ------- Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations;
(d) Full payment to the company of all amounts which, under federal, state or local law, it is required to withhold upon exercise of the Option; and
(e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Grantee, appropriate proof of the right of such person or persons to exercise the Option. Without limiting the generality of the foregoing, the Committee Company may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of the shares acquired upon the on exercise of the an Option does not violate the Act Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common Stock stock issued upon the on exercise of the Option shall bear an appropriate legend referring to the provisions of this Section 4.3(csubsection (c) above and the agreements herein and thereinherein. The written representation and agreement referred to in subsection (c) and the first sentence of this Section 4.3(c) legend referred to above shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act Act, and such registration is then effective in respect of such shares.
(d) In the event the Option or portion . The Company shall be exercised pursuant to Section 4.1 by any person or persons other than the Employee, appropriate proof determine acceptable methods for tendering and withholding Common Stock of the right Company as payment of the Exercise Price upon exercise of an Option and in satisfaction of any withholding obligation and may impose such person or persons limitations and prohibitions on the use of Common Stock of the Company to exercise an Option as it deems appropriate, including without limitation, any limitation or prohibition designed to avoid certain accounting consequences that may result from the Optionuse of Common Stock of the Company as payment of the Exercise Price upon exercise of an Option and in satisfaction of any withholding obligation.
Appears in 1 contract
Sources: Nonqualified Deferred Stock Option Agreement (Ashton Technology Group Inc)