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Right of First Refusal and Co-Sale Agreement优先取舍权协议

2008-03-05 来源: 作者:
核心提示:This RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT is entered into as of the day of _________(M), _________(Y)by and among _________, a _________(address) corporation (the Company), (the Founder) and the undersigned holders (the Purchasers) of Series

This RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT is entered into as of the day of _________(M), _________(Y)by and among _________, a _________(address) corporation (the "Company"), (the "Founder") and the undersigned holders (the "Purchasers") of Series A Preferred Stock of the Company (the "Preferred Shares").

WITNESSETH

WHEREAS, the Company and the Purchasers [and the Founder] are parties to the Series A Preferred Stock Purchase Agreement of even date herewith, pursuant to which the Purchasers are purchasing shares of the Company's Series A Preferred Stock;

WHEREAS, the Founder is the beneficial owner of the number of shares of Common Stock of the Company set forth opposite his/her name on Schedule A hereto; and

WHEREAS, the Founder wishes to provide further inducement to the Purchasers to purchase the Preferred Shares;

NOW, THEREFORE, in consideration of the premises and the mutual promises set forth in this Agreement;

THE PARTIES AGREE AS FOLLOWS:

1. Restrictions on Transfer of Shares by Founder. Except as otherwise provided in this Agreement, the Founder will not sell, assign, transfer, pledge, hypothecate, or otherwise encumber or dispose of in any way, all or any part of or any interest in the Equity Securities (as defined below) now or hereafter owned or held by the Founder. Any sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Equity Securities not made in conformance with this Agreement shall be null and void, shall not be recorded on the books of the Company and shall not be recognized by the Company.

[COMMENT: The scope of this Agreement is favorable to investors as it includes any transfer of the Company's securities by the named founder(s), including securities subsequently acquired after the date of the Agreement, by option exercise or otherwise.]

2. Definitions.

(a) Equity Securities. For purposes of this Agreement, the term "Equity Securities" shall mean any securities having voting rights in the election of the Board of Directors of the Company not contingent upon default, or any securities evidencing an ownership interest in the Company, or any securities convertible into or exercisable for any shares of the foregoing, or any agreement or commitment to issue any of the foregoing.

(b) Holders. For purposes of this Agreement, the term "Holders" shall mean the Purchasers or persons who have acquired shares from any of such persons or their transferees or assignees in accordance with the provisions of this Agreement.

3. Agreements Among the Company, the Purchasers and the Founder.

3.1 Rights of Refusal.

(a) Transfer Notice. If at any time the Founder proposes to transfer Equity Securities to one or more third parties pursuant to an understanding with such third parties (a "Transfer"), then the Founder shall give the Company and each Holder written notice of the Founder's intention to make the Transfer (the "Transfer Notice"), which Transfer Notice shall include (i) a description of the Equity Securities to be transferred ("Offered Shares"), (ii) the identity of the prospective transferee(s) and (iii) the consideration and the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that the Founder has received a firm offer from the prospective transferee(s) and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer.

(b) Company's Option. The Company shall have an option for a period of _________ (_________) days from receipt of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and, thereby, purchase all (or a portion of) the Offered Shares by notifying the Founder in writing before expiration of the such _________ (_________) day period as to the number of such shares which it wishes to purchase. If the Company gives the Founder notice that it desires to purchase such shares, then payment for the Offered Shares shall be by check or wire transfer, against delivery of the Offered Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than _________ (_________) days after the Company's receipt of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 3.1(e). If the Company fails to purchase all of the Offered Shares by exercising the option granted in this Section 3.1(b) within the period provided, the Offered Shares shall be subject to the options granted to the Holders pursuant to this Agreement.

[COMMENT: Some Founders may object to the Company's and Holders' rights to partially exercise the right of first refusal, as the proposed transferee(s) may not be willing to purchase the smaller remaining number of shares.]

(c) Additional Transfer Notice. Subject to the Company's right set forth in Section 3.1(b), if at any time the Founder proposes a Transfer, then, after the Company has declined to purchase all, or a portion of, the Offered Shares, the Founder shall give each Holder an "Additional Transfer Notice" which shall include all of the information and certifications required in a Transfer Notice and shall additionally identify the Offered Shares which the Company has declined to purchase (the "Remaining Shares") and briefly describe Holders' rights of first refusal and co-sale rights with respect to the proposed Transfer.

(d) Holders' Option. The Holders shall have an option for a period of _________ (_________) days from the Holder's receipt of the Additional Transfer Notice from the Founder set forth in Section 3.1(c) to elect to purchase their respective pro rata shares of the Remaining Shares at the same price and subject to the same material terms and conditions as described in the Additional Transfer Notice. Each Holder may exercise such purchase option and, thereby, purchase all or any portion of his, her or its pro rata share (with any reallotments as provided below) of the Remaining Shares, by notifying the Founder and the Company in writing, before expiration of the _________ (_________) day period as to the number of such shares which he, she or it wishes to purchase (including any reallotment). Each Holder's pro rata share of the Remaining Shares shall be a fraction of the Remaining Shares, of which the number of shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Shares) owned by such Holder on the date of the Transfer Notice shall be the numerator and the total number of shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Shares) held by the Founder and all Holders on the date of the Transfer Notice shall be the denominator. Each Holder shall have a right of reallotment such that, if any other Holder fails to exercise the right to purchase its full pro rata share of the Remaining Shares, the other participating Holders may exercise an additional right to purchase, on a pro rata basis, the Remaining Shares not previously purchased. Each Holder shall be entitled to apportion Remaining Shares to be purchased among its partners and affiliates, provided that such Holder notifies the Founder of such allocation. If a Holder gives the Founder notice that it desires to purchase its pro rata share of the Remaining Shares and, as the case may be, its reallotment, then payment for the Remaining Shares shall be by check or wire transfer, against delivery of the Remaining Shares to be purchased at a place agreed upon between the parties and at the time of the scheduled closing therefor, which shall be no later than forty-five (45) days after the Company's receipt of the Transfer Notice, unless the Transfer Notice contemplated a later closing with the prospective third party transferee(s) or unless the value of the purchase price has not yet been established pursuant to Section 3.1(e).

(e) Valuation of Property. Should the purchase price specified in the Transfer Notice or Additional Transfer Notice be payable in property other than cash or evidences of indebtedness, the Company (or the Holders) shall have the right to pay the purchase price in the form of cash equal in amount to the value of such property. If the Founder and the Company (or the Holders) cannot agree on such cash value within _________ (_________) days after the Company's receipt of the Transfer Notice (or the Holders' receipt of the Additional Transfer Notice), the valuation shall be made by an appraiser of recognized standing selected by the Founder and the Company (or the Holders) or, if they cannot agree on an appraiser within _________ (_________) days after the Company's receipt of the Transfer Notice (or the Holders' receipt of the Additional Transfer Notice), each shall select an appraiser of recognized standing and the two appraisers shall designate a third appraiser of recognized standing, whose appraisal shall be determinative of such value. The cost of such appraisal shall be shared equally by the Founder and the Company (or the Holders), with the half of the cost borne by the Company and the Holders borne pro rata by each based on the number of shares such parties were interested in purchasing pursuant to this Section 3. If the time for the closing of the Company's purchase or the Holders' purchase has expired but for the determination of the value of the purchase price offered by the prospective transferee(s), then such closing shall held on or prior to the fifth business day after such valuation shall have been made pursuant to this subsection.

[COMMENT: The length of notice periods are the subject of negotiation between founders and investors, with founders objecting to long notice periods as limiting their ability to sell shares and investors objecting to periods which are too short to evaluate the proposed terms or finance the exercise of the right of first refusal. In addition, the presence or absence of reallotment options or mechanisms are often negotiated.]

3.2 Right of Co-Sale.

(a) To the extent the Company and the Holders do not exercise their respective rights of refusal as to all of the Offered Shares pursuant to Section 3.1, then each Holder (a "Selling Holder" for purposes of this subsection 3.2) which notifies the Founder in writing within _________ (_________) days after receipt of the Transfer Notice referred to in Section 3.1(a), shall have the right to participate in such sale of Equity Securities on the same terms and conditions as specified in the Transfer Notice. Such Selling Holder's notice to the Founder shall indicate the number of shares of Equity Securities the Selling Holder wishes to sell under his, her or its right to participate. To the extent one or more of the Holders exercise such right of participation in accordance with the terms and conditions set forth below, the number of shares of Equity Securities that the Founder may sell in the Transfer shall be correspondingly reduced.

(b) Each Selling Holder may sell all or any part of that number of shares of Equity Securities equal to the product obtained by multiplying (i) the aggregate number of shares of Equity Securities covered by the Transfer Notice by (ii) a fraction, the numerator of which is the number of shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Shares) owned by the Selling Holder on the date of the Transfer Notice and the denominator of which is the total number of shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Shares) owned by Founder and all of the Selling Holders on the date of the Transfer Notice.

(c) Each Selling Holder shall effect its participation in the sale by promptly delivering to the Founder for transfer to the prospective purchaser one or more certificates, properly endorsed for transfer, which represent:

(i) the type and number of shares of Equity Securities which such Selling Holder elects to sell; or

(ii) that number of shares of Equities Securities which are at such time convertible into the number of shares of Common Stock which such Selling Holder elects to sell; provided, however, that if the prospective third-party purchaser objects to the delivery of Equity Securities in lieu of Common Stock, such Selling Holder shall convert such Equity Securities into Common Stock and deliver Common Stock as provided in this Section 3.2. The Company agrees to make any such conversion concurrent with the actual transfer of such shares to the purchaser and contingent on such transfer.

(d) The stock certificate or certificates that the Selling Holder delivers to the Founder pursuant to Section 3.2(d) shall be transferred to the prospective purchaser in consummation of the sale of the Equity Securities pursuant to the terms and conditions specified in the Transfer Notice, and the Founder shall concurrently therewith remit to such Selling Holder that portion of the sale proceeds to which such Selling Holder is entitled by reason of its participation in such sale. To the extent that any prospective purchaser or purchasers prohibits such assignment or otherwise refuses to purchase shares or other securities from a Selling Holder exercising its rights of co-sale hereunder, the Founder shall not sell to such prospective purchaser or purchasers any Equity Securities unless and until, simultaneously with such sale, the Founder shall purchase such shares or other securities from such Selling Holder for the same consideration and on the same terms and conditions as the proposed transfer described in the Transfer Notice.

3.3 Non-Exercise of Rights. To the extent that the Company and the Holders have not exercised their rights to purchase the Offered Shares or the Remaining Shares within the time periods specified in Section 3.1 and the Holders have not exercised their rights to participate in the sale of the Offered Shares or the Remaining Shares within the time periods specified in Section 3.2, the Founder shall have a period of _________ (_________) days from the expiration of such rights in which to sell the Offered Shares or the Remaining Shares, as the case may be, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice to the third-party transferee(s) identified in the Transfer Notice. The third-party transferee(s) shall acquire the Remaining Shares free and clear of subsequent rights of first refusal and co-sale rights under this Agreement. In the event Founder does not consummate the sale or disposition of the Remaining Shares within the _________ (_________) day period from the expiration of these rights, the Company's first refusal rights and the Holders' first refusal rights and co-sale rights shall continue to be applicable to any subsequent disposition of the Offered Shares or the Remaining Shares by Founder until such right lapses in accordance with the terms of this Agreement. Furthermore, the exercise or nonexercise of the rights of the Company and the Holders under this Section 3 to purchase Equity Securities from the Founder or participate in sales of Equity Securities by the Founder shall not adversely affect their rights to make subsequent purchases from the Founder of Equity Securities or subsequently participate in sales of Equity Securities by the Founder.

3.4 Limitations to Rights of Refusal and Co-Sale. Notwithstanding the provisions of Section 3.1 and 3.2 of this Agreement, the Founder may sell or otherwise assign, with or without consideration, Equity Securities to any spouse or member of Founder's immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Founder's spouse or members of the Founder's immediate family, or to a trust for the Founder's own self, or a charitable remainder trust, provided that each such transferee or assignee, prior to the completion of the sale, transfer, or assignment shall have executed documents assuming the obligations of the Founder under this Agreement with respect to the transferred securities. [In addition, the Founder's transfer of up to an aggregate % of the shares of Common Stock initially subject to this Agreement or Equity Securities convertible into such number of shares of Common Stock shall not be subject to the terms of Section 3.2]

[COMMENT: Rights of first refusal and co-sale rights routinely exempt transfers within the founder's family and transfers made for estate planning purposes, provided that the transferee of the shares is bound by the terms of the Agreement. In addition, exceptions from cosale rights for transfers of small numbers of shares are often allowed for administrative convenience or to permit the founder to achieve limited amounts of liquidity.]

3.5 Prohibited Transfers.

(a) In the event the Founder should sell any Equity Securities in contravention of the co-sale rights of the Holders under Section 3.2 (a "Prohibited Transfer"), the Holders, in addition to such other remedies as may be available at law, in equity or hereunder, shall have the put option provided below, and the Founder shall be bound by the applicable provisions of such option.

(b) In the event of a Prohibited Transfer, each Holder shall have the right to sell to the Founder the type and number of shares of Equity Securities equal to the number of shares each Holder would have been entitled to transfer to the third-party transferee(s) under Section 3.2 hereof had the Prohibited Transfer been effected pursuant to and in compliance with the terms hereof. Such sale shall be made on the following terms and conditions:

(i) The price per share at which the shares are to be sold to the Founder shall be equal to the price per share paid by the third-party transferee(s) to the Founder in the Prohibited Transfer. The Founder shall also reimburse each Holder for any and all fees and expense, including legal fees and expenses, incurred pursuant to the exercise or the attempted exercise of the Holder's rights under Section 3.

(ii) Within _________ (_________) days after the later of the dates on which the Holder (A) received notice of the Prohibited Transfer or (B) otherwise become aware of the Prohibited Transfer, each Holder shall, if exercising the option created hereby, deliver to the Founder the certificate or certificates representing shares to be sold, each certificate to be properly endorsed for transfer.

(iii) The Founder shall, upon receipt of the certificate or certificates for the shares to be sold by a Holder, pursuant to this Section 3.5, pay the aggregate purchase price therefor and the amount of reimbursable fees and expenses, as specified in subparagraph 3.5(b)(i), in cash or by other means acceptable to the Holder.

(iv) Notwithstanding the foregoing, any attempt by the Founder to transfer Equity Securities in violation of Section 3 hereof shall be void and the Company agrees it will not effect such a transfer nor will it treat any alleged transferee(s) as the holder of such shares without the written consent of a majority in interest of the Holders.

[COMMENT: This provision affords investors the economic benefits of their co-sale rights should the founder consummate a sale without complying with the terms of this Agreement. Note, however, that the investors may believe the founder sold his or her shares at too low a price or to a party that the Company or the investors do not wish to have as a stockholder and therefore providing the opportunity to share in the economics of the sale after the fact is not a sufficient remedy. Accordingly, Section 3.5(a) states that this forced sale to the founder is not the parties' sole remedy.]

4. Assignments and Transfers; No Third Party Beneficiaries. This Agreement and the rights and obligations of the parties hereunder shall inure to the benefit of, and be binding upon, their respective successors, assigns and legal representatives, but shall not otherwise be for the benefit of any third party. The rights of the Holders hereunder are only assignable (i) by each of such Holders to any other Holder, (ii) to a partner or affiliate of such Holder or (iii) to an assignee or transferee who acquires all of the Equity Securities purchased by a Stockholder or at least shares of Common Stock (including shares of Common Stock issuable upon conversion of Preferred Shares).

5. Legend. Each existing or replacement certificate for shares now owned or hereafter acquired by the Founder shall bear the following legend upon its face: THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE CORPORATION AND CERTAIN HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.

[COMMENT: In addition to legending share certificates, some agreements require that the founder's share certificates be held in escrow by the Secretary of the Company to further minimize the risk of any transfers not in compliance with the terms of this Agreement.]

6. Effect of Change in Company's Capital Structure. Appropriate adjustments shall be made in the number and class of shares in the event of a stock dividend, stock split, reverse stock split, combination, reclassification or like change in the capital structure of the Company.

[COMMENT: If Agreement does not include the Founder's subsequently acquired stock, then consider adding the following to this section: "If, from time to time, there is any stock dividend, stock split or other change in the character or amount of any of the outstanding stock of the Company, then in such event any and all new, substituted or additional securities to which the Founder is entitled by reason of the Founder's ownership of the stock shall be immediately subject to the rights and obligations set forth in Section 3 with the same force and effect as the stock subject to such rights immediately before such event."]

7. Notices. Any notice required or permitted by any provision of this Agreement shall be given in writing and shall be delivered personally or by courier, or by registered or certified mail, postage prepaid, addressed (i) in the case of the Founder to the Founder's address as set forth in the signature pages hereto or such other address as the Founder may designate in writing from time to time, (ii) in the case of the Company, to its principal office, (iii) in the case of any Purchaser which is an original party to this Agreement at the address of such Purchaser as set forth in the signature pages hereto or such other address for such Purchaser as shall be designated in writing from time to time by such Purchaser; and, (iv) in the case of any permitted transferee of a party to this Agreement or its transferee, to such transferee at its address as designated in writing by such transferee to the Company from time to time. Notices that are mailed shall be deemed received _________ (_________) days after deposit in the United States mail. Notices sent by courier or overnight delivery shall be deemed received _________ (_________) days after they have been so sent.

8. Further Instruments and Actions. The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. The Founder agrees to cooperate affirmatively with the Company, the Purchasers and the Holders, to the extent reasonably requested by the Company, the Purchasers or the Holders, to enforce rights and obligations pursuant hereto.

9. Term. This Agreement shall terminate upon the earlier of (i) the closing of a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, [covering the offer and sale of the Company's Common Stock at a price per share of not less than [$ _________] (as adjusted for stock splits, reverse stock splits and the like effected after the date of this Agreement) and an aggregate offering price of not less than [$ _________]] and (ii) the closing of the Company's sale of all or substantially all of its assets or the acquisition of the Company by another entity by means of merger, consolidation or other transaction or series of related transactions resulting in the exchange of the outstanding shares of the Company's capital stock such that the stockholders of the Company prior to such transaction own, directly or indirectly, less than _________% of the voting power of the surviving entity.

[COMMENT: These rights should usually expire upon an initial public offering or acquisition of the Company. Upon an initial public offering, the founders and other stockholders should be equally able to seek liquidity in public markets. Upon an acquisition, the event which the co-sale rights were intended to protect investors from has occurred.]

10. Entire Agreement. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof, supersedes all other agreements between or among any of the parties with respect to the subject matter hereof and cannot be altered or otherwise amended except pursuant to an instrument in writing signed by each of the parties to this Agreement. This Agreement shall be interpreted under the laws of the State of _________ without reference to _________ conflicts of law provisions.

11. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company, the written consent of the Founder and the written consent of the Holders of more than _________% of the Common Stock issued or issuable upon conversion of the Preferred Shares then outstanding. Any amendment or waiver effected in accordance with this paragraph shall be binding upon the Founder and all Holders and their respective successors and assigns.

12. Separability. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

13. Attorney's Fees. In the event that any dispute among the parties to this Agreement should result in litigation, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

COMPANY

By: _________

Title: _________

Address:_________


FOUNDER:_________

By:_________

Address:_________


PURCHASERS:_________

By:_________

Address:_________

SCHEDULE A

CAPITAL STOCK OF THE COMPANY BENEFICIALLY OWNED BY THE FOUNDER

FounderClass/Series of StockNumber of Shares

2008-03-05 来源: 作者:
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