time to
time and the rules and regulations promulgated thereunder.
"Tag-Along Rights" shall have the meaning set forth in Section 5.1(b) hereof.
"Third Party Offer" shall have the meaning set forth in Section 4.1 hereof.
"Transfer" shall have the meaning set forth in Section 3.1 hereof.
"Underwritten Offering" shall mean a distribution, registered pursuant to the
Securities Act, in which securities of the Company are sold to the public
through one or more underwriters in a "firm commitment" underwriting.
1.2
WHEN USED IN THIS AGREEMENT, THE TERM "INCLUDING"
SHALL BE DEEMED TO MEAN "INCLUDING, WITHOUT LIMITATION", ALL REFERENCES TO
"DOLLARS" OR "$" ARE TO UNITED STATES DOLLARS, THE MASCULINE PRONOUN SHALL
INCLUDE THE FEMININE AND NEUTER, AND THE SINGULAR THE PLURAL, WHERE THE CONTEXT
SO INDICATES.
THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER" AND WORDS OF SIMILAR
IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER TO THIS AGREEMENT AS A WHOLE AND
NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT, AND SECTION REFERENCES ARE TO
THIS AGREEMENT UNLESS OTHERWISE SPECIFIED.
THE MEANINGS GIVEN TO TERMS DEFINED
HEREIN SHALL BE EQUALLY APPLICABLE TO BOTH THE SINGULAR AND PLURAL FORMS OF SUCH
TERMS.
4
SECTION 2.
Purchase of Common Stock.
2.1
SUBJECT TO THE TERMS AND CONDITIONS HEREINAFTER SET
FORTH, AT THE EFFECTIVE DATE, THE COMPANY SHALL, OR SHALL CAUSE ITS DULY
AUTHORIZED AGENT TO, ISSUE AND DELIVER TO MANAGEMENT SHAREHOLDER THE NUMBER OF
SHARES OF COMMON STOCK SPECIFIED ON THE SIGNATURE PAGE HERETO (SUCH SHARES, THE
"PURCHASE STOCK"), AND IN CONSIDERATION FOR SUCH ISSUANCE AND DELIVERY, THE
MANAGEMENT SHAREHOLDER SHALL, OR SHALL CAUSE ITS DULY AUTHORIZED AGENT TO, PAY
TO THE COMPANY IN IMMEDIATELY AVAILABLE FUNDS THE AMOUNT SPECIFIED ON THE
SIGNATURE PAGE HERETO.
2.2
THE EFFECTIVE DATE SHALL BE THE SAME DATE AS
THE "CLOSING DATE" UNDER THE EXCHANGE AGREEMENT.
SECTION 3.
TRANSFERS.
3.1
THE MANAGEMENT STOCKHOLDER AGREES NOT TO, DIRECTLY OR
INDIRECTLY, OFFER, TRANSFER, SELL, ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE
DISTRIBUTE OR DISPOSE OF (ANY OF THE FOREGOING ACTS BEING REFERRED TO HEREIN AS
A "TRANSFER"), SHARES OF PURCHASE STOCK AT ANY TIME PRIOR TO THE DATE OF
CONSUMMATION OF THE EARLIER OF A QUALIFIED PUBLIC OFFERING OR A QUALIFIED SALE;
PROVIDED, HOWEVER, THAT DURING SUCH PERIOD THE MANAGEMENT STOCKHOLDER MAY
TRANSFER SHARES OF PURCHASE STOCK PURSUANT TO ANY OF THE FOLLOWING EXCEPTIONS:
(A)
A TRANSFER MADE PURSUANT TO AND IN ACCORDANCE WITH SECTIONS 3.2, 4,
5 OR 6 HEREOF;
(B)
A TRANSFER UPON THE DEATH OR PERMANENT DISABILITY OF THE MANAGEMENT
STOCKHOLDER TO THE MANAGEMENT STOCKHOLDER'S ESTATE OR A TRANSFER TO THE
EXECUTORS, ADMINISTRATORS, TESTAMENTARY TRUSTEES, LEGATEES OR BENEFICIARIES OF A
PERSON WHO HAS BECOME A HOLDER OF SHARES OF PURCHASE STOCK IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT; PROVIDED THAT SUCH TRANSFER IS MADE EXPRESSLY
SUBJECT TO THIS AGREEMENT AND THAT THE TRANSFEREE AGREES IN WRITING TO BE BOUND
BY THE TERMS AND CONDITIONS HEREOF;
(C)
A TRANSFER MADE IN COMPLIANCE WITH THE FEDERAL SECURITIES LAWS TO A
MANAGEMENT STOCKHOLDER'S TRUST, PROVIDED THAT SUCH TRANSFER IS