STOCK RESALE RESTRICTION AGREEMENT
This
STOCK RESALE RESTRICTION AGREEMENT (the "Agreement") with respect to certain
stock option award agreements (the "Option Agreements") issued under the
Aptimus, Inc. 1997 Stock Option Plan (the "Plan") is made and entered into
as of
December 23, 2005 (“Effective Date”) by and between Aptimus, Inc., a Washington
corporation ("Company"), and the employee, director or service provider whose
name appears in the signature block below ("Holder").
A. Holder
has been granted one or more options (each, an "Option") to acquire shares
of
common stock of the Company (the "Shares") in such quantities and at the
exercise prices set forth in Exhibit
A
hereto
pursuant to the Option Agreements;
B. The
Options designated on Exhibit
A
are
fully vested and exercisable by reason of an action of the Company's Board
of
Directors, effective December 31, 2005; and
C. Company
and Holder wish to impose certain resale restrictions
on
the
Shares subject to the Options as provided herein on the terms and conditions
contained herein.
NOW,
THEREFORE, it is agreed as follows:
1. Resale
Restriction.
Holder
shall not sell, contract to sell, grant any option to purchase, transfer any
economic interest in or legal or equitable title to, pledge, encumber,
hypothecate or otherwise transfer or dispose of (together “Resale Restrictions”)
all or any portion of the Shares until the Shares have been released from the
Resale Restrictions as provided herein.
2. Restricted
Shares.
The
Shares designated "Restricted" on Exhibit
A
shall be
subject to the Resale Restrictions.
3. Release
of Restriction.
The
Resale Restrictions in respect to the Shares shall lapse, and such Shares shall
become free of the restrictions imposed by this Agreement, in accordance with
the schedule set forth on Exhibit
A
hereto.
4. Effect
of Termination.
Notwithstanding anything in this Agreement to the contrary, in the event
Holder's employment or service with Company is terminated for any reason, 100%
of the Shares shall become free from the Resale Restrictions as of the effective
date of such termination of employment or service, as the case may be.
5. Legend.
To
enforce the restrictions contained in this Agreement, Holder understands and
agrees that Company shall cause the legend set forth below or a legend
substantially equivalent thereto, to be placed upon any certificate(s)
evidencing ownership of such Shares, if any, issued prior to the lapse and
release of the Resale Restrictions in respect to such Shares, together with
any
other legends that may be required by Company or by applicable state or federal
securities laws:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
ON
RESALE, AS SET FORTH IN THE RESALE RESTRICTION AGREEMENT BETWEEN THE ISSUER
AND
THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE
PRINCIPAL OFFICE OF THE ISSUER. SUCH RESALE RESTRICTIONS ARE BINDING ON
TRANSFEREES OF THESE SHARES.
Each
certificate or certificates including the legend set forth herein shall be
held
by the Secretary of the Company or the stock transfer agent or brokerage service
selected by the Secretary of the Company to provide such services.
6. Stop-Transfer
Notices.
Holder
agrees that, in order to ensure compliance with the restrictions referred to
herein, Company may issue appropriate “stop transfer” instructions to its
transfer agent in the event of a breach of the Resale Restrictions by Holder,
its agents or transferees.
7. Refusal
to Transfer.
Company
shall not be required (i) to transfer on its books any Shares that have
been sold or otherwise transferred in violation of any of the provisions of
this
Agreement, or (ii) to treat as owner of such Shares or to accord the right
to vote or pay dividends to any holder or other transferee to whom such Shares
shall have been so transferred.
8. Removal
of Resale Restrictions.
After
the Resale Restrictions with respect to the Shares lapse, upon demand, Company
shall promptly cause to be issued a certificate or certificates, registered
in
the name of Holder or in the name of Holder’s legal representatives,
beneficiaries or heirs, as the case may be, evidencing such unrestricted Shares
and shall cause such certificate or certificates to be delivered to Holder
or
Holder’s legal representatives, beneficiaries or heirs, as the case may be, free
of the legend or the stop-transfer order referenced above. If a portion of
the
Shares represented by a certificate remain subject to Resale Restrictions,
the
Company shall also cause to be issued a certificate representing the portion
of
the Shares still subject to Resale Restrictions to be issued with the legend
and
subject to the stop-transfer order and retain possession of such Shares until
such time as the Resale Restrictions in respect thereto have
lapsed.
9. Miscellaneous.
(a)
Waiver.
No
waiver of any provision of this Agreement shall be valid unless in writing
signed by the waiving party, nor shall any waiver or failure to enforce any
right in one instance constitute or be deemed a continuing waiver of that right
or of any other right under this Agreement in any other instance.
(b)
Choice
of Law and Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Washington without regard to choice or conflict of law principles
and
provisions. Venue for any suit or proceeding hereunder shall be in the state
and
federal courts sitting in King County, Washington.
(c)
Savings
Clause.
If any
provision of this Agreement is held to be invalid or unenforceable to any
extent, it shall nevertheless be enforced to the fullest extent allowed by
law
in that and other contexts, and the validity and force of the remainder of
this
Agreement shall not be affected.
(d)
Notices.
All
notices required or permitted hereunder shall be given in writing and delivered
in person, transmitted by facsimile, delivered via overnight courier or sent
by
registered or certified mail, postage prepaid and return receipt requested,
to
the parties at their respective addresses and facsimile numbers, or to such
other address/number as a party may subsequently specify in writing. Notice
shall be deemed effective upon the earlier of actual receipt, which if by
facsimile shall be deemed conclusively determined by electronic confirmation
of
delivery, the next day following deposit with a national commercial delivery
service if sent by overnight courier, or the third business day after the date
on which said notice was sent by any other method described above.
(e)
Complete
Agreement.
This
Agreement comprises the entire agreement between the parties in respect to
the
subject matter hereof. It may be changed only by further written agreement,
signed by both parties. It supersedes and merges within it all prior agreements
or understandings between the parties, whether written or oral. In interpreting
or construing this Agreement, the fact that one or the other of the parties
may
have drafted this Agreement or any provision shall not be given any weight
or
relevance.
(f)
Attorney’s
Fees and Costs.
The
prevailing party in any claim, suit or proceeding brought to interpret or
enforce the terms of this Agreement shall be entitled to an award of its
attorneys fees and costs incurred in every stage of such claim, suit or
proceeding, including appeal.
DATED
as
of the date first above written.
| APTIMUS, INC. | HOLDER | |||
| By: | ||||
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| Its: |
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Print Name: |
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EXHIBIT
A
Restricted
Shares and Restriction Expiration Schedule
|
Option
Agreement Grant No.
|
Option
Grant Date
|
Exercise
Price
|
Original
Shares Granted
|
Number
of Restricted Shares
|
Restriction
Expiration Schedule*
|
|
Pursuant
to option vesting schedule in Option Agreement Grant No. ##
|
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*
As such
expiration schedule may be modified by the terms of that certain Change in
Control Agreement, if any, and any amendments thereto, by and between Holder
and
Company.