Exhibit 3
OPTION AGREEMENT
by and between
WINGRA TECHNOLOGIES, LLC
a Wisconsin limited liability company
(hereinafter the "Company")
and
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(hereinafter the "Holder")
to purchase Units of
WINGRA TECHNOLOGIES, LLC
THIS OPTION AGREEMENT, AND THE UNITS WHICH MAY BE PURCHASED IN
ACCORDANCE HEREWITH, CONSTITUTE SECURITIES. NEITHER THIS OPTION
AGREEMENT NOR THE UNITS WHICH MAY BE PURCHASED IN ACCORDANCE
HEREWITH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY RAVE BEEN
REGISTERED UNDER THE ACT AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS, OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
This Option Agreement is entered into as of the first day of March, by
and between Wingra Technologies, LLC (the "Company") and ___________ (the
"Holder").
WHEREAS, the Company wishes to grant to the Holder, and the Holder
wishes to obtain from the Company, an option to purchase Units ' of the Company
(as the term "Units" is defined in the Company's Operating Agreement, as amended
and/or restated from time to time (the "Operating Agreement")) upon the terms
and conditions set forth herein; and
WHEREAS, as of the date hereof, the Company is indebted to Holder in
the principal sum of ___________________ ($___________________) and the Company
has delivered to the Holder its promissory note (the "Note") in such principal
amount, and dated as of the date hereof, evidencing such debt; and
WHEREAS, the Company and the Holder intend that any amount (or portion
thereof) outstanding upon the Note may, at the Holder's option, be applied
toward payment of any portion of the exercise price of any of the Units elected
to be purchased, in accordance with the terms and conditions set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, The Company hereby grants to the Holder the following
option (the "Option"):
1. _______ Grant of Option. Subject to the terms and conditions
hereinafter set forth, the Holder is hereby given the right and option to
purchase from the Company at the option price of ___________________ Dollars
($___________________) per Unit, and pursuant to the terms and provisions set
forth herein, an aggregate of ___________________ (___________________) Units of
the Company.
The Holder shall have the right and option to purchase any or all of
the Units with respect to which this Option is vested, upon notice and payment
of the exercise price as set forth hereinafter, and such right and option to
purchase shall continue until it expires by lapse of time or as otherwise
provided in this Option.
2. Vesting. This Option is immediately vested with respect to all Units
to which Holder is granted an option as set forth herein.
3. Term. In no event shall this Option be exercisable as to any Units
after the earlier to occur of the following:
(a) ___________________;
(b) Payment of the entire balance of the Note;
(c) The death of the Holder if, as a result of such death, the rights
in this Option transfer by operation of law to a person or entity who does not
qualify as an "accredited investor" as that term is defined in Rule 501 of
Regulation D promulgated pursuant to the Securities Act of 1933, as amended; or
(d) The bankruptcy of the Holder.
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4. Exercise of Option. This Option shall be exercised by the delivery
of written notice to the Company setting forth the number of Units with respect
to which the Option is being exercised together with (a) cash, certified check,
bank draft or postal or express money order payable to the order of the Company
in the amount of the exercise price for such number of Units, or (b) a written
designation of the amount of the outstanding balance of the Note (whether or not
such amount is then due) which the Holder wishes to have credited toward payment
of the exercise price for such Units, together with (if applicable) cash,
certified check, bank draft or postal or express money order payable to the
order of the Company in the amount (if any) of the balance of the exercise price
for such number of Units. Such notice shall specify the address to which the
certificates for such Units are to be mailed. Upon delivery to the Holder by the
Company of Units with respect to which this Option has been exercised, any
amount of the purchase price designated by the Holder to have been paid by
crediting the same against the outstanding balance of the Note shall be deemed
paid against the Note as of the date the Holder made such designation.
If the Holder exercises this Option and pays the consideration with
respect to such exercise as provided for and required by this Section 4, then
the Holder shall become a Member of the Company with all the rights of a Member,
and subject to all of the duties and obligations of a Member, as set forth in
the Company's Operating Agreement.
5. Certificate for Units. Upon the exercise by the Holder of the
Holder's right to purchase any Units hereunder, the Company shall promptly
deliver to the Holder at the address specified pursuant to Section 4 hereof, a
certificate or certificates for the number of Units with respect to which this
Option has been exercised; provided, however, that such delivery shall be deemed
effected for all purposes when a stock transfer agent shall have deposited such
certificate or certificates in the United States mail, addressed to the Holder,
at the address so specified; and further provided that if any law or regulation
or order of the Securities and Exchange Commission or other body having
jurisdiction in the matter shall require the Company or the Holder to take any
action in connection with the Units then being -purchased, the date of the
delivery of the certificates. for such Units shall be extended for the period
necessary to take and complete such action.
6. Changes in Company's Capital Structure. The existence of this Option
shall not affect in any way the right or power of the Company or its Board of
Directors to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference units ahead of or affecting the Units
of the Company or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other company act or proceeding, whether of a similar character or
otherwise.
If the Company shall effect a subdivision or consolidation of Units or
other capital readjustment, the payment of a Unit dividend, or other increase or
reduction of the number of Units of the Company outstanding, without receiving
compensation therefor in money, services or property, then the number, class,
and per Unit exercise price of the Units subject to this Option shall be
appropriately adjusted in such a manner as to entitle the Holder to receive upon
exercise of this Option, for the same aggregate consideration, the same total
number and class of Units of the Company as he would have received as a result
of the event requiring the adjustment had he exercised this Option in full
immediately prior to such event.
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After a merger of one or more companies into the Company, or after a
consolidation of the Company and one or more companies in which the Company
shall be the surviving company, the Holder shall, at no additional cost, be
entitled upon exercise of this Option to receive in lieu of the number of Units
of the Company as to which this Option shall then be so exercised, the number
and class of Units of or other securities to which the Holder would have been
entitled pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, the Holder had been the
holder of record of a number of Units of the Company equal to the number of
Units as to which this Option shall then be so exercised.
If the Company is merged into or consolidated with another company
under circumstances where the Company is not the surviving company, or if the
Company is liquidated, or sells or otherwise disposes of substantially all its
assets to another entity while this Option remains outstanding, this Option
shall continue to be fully vested and exercisable until its scheduled expiration
date; and the Holder shall be entitled, upon exercise thereof (whether before or
after the effective date of such merger, consolidation, liquidation or sale), to
receive in lieu of Units, consideration identical to that which the Holder would
have been entitled pursuant to the terms of the agreement of merger,
consolidation, liquidation or sale if, immediately prior to such merger,
consolidation, liquidation or sale, the Holder had been the holder of record of
a number of Units equal to the number of Units as to which this Option shall
then be so exercised.
In the event of a cash-out merger, whether or not the Company is the
surviving company, this Option shall, (a) if exercised, be cashed out in the
same manner as Units which would have previously been acquired pursuant to an
exercise of this Option Agreement had such an exercise previously been permitted
and occurred, and (b) if not exercised, shall terminate as of the effective date
of such cash-out merger.
Except as hereinbefore expressly provided, the issue by the Company of
Units or securities convertible into Units, for cash or property, or for labor
or services, either upon direct sale or upon the exercise of rights or warrants
to subscribe therefor, or upon conversion of Units or obligations of the Company
convertible into such Units or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of Units then subject to this Option.
7. No Rights as Unit Holder. No person shall, by virtue of the granting
of this Option to the Holder, be deemed to be a holder of any Units purchasable
under this Option or to be entitled to the rights or privileges of a holder of
such Units unless and until this Option has been exercised with respect to such
Units and they have been transferred pursuant to such exercise.
8. Reservation and Delivery of Units. The Company shall, at all times
while any portion of this Option is outstanding, maintain a sufficient number of
authorized Units to satisfy the requirements of this Option; shall comply with
the terms of this Option promptly upon exercise of this Option; and shall pay
all fees or expenses which the Company may incur in connection with the issuance
and delivery of Units pursuant to the exercise of this Option.
9. Non-Transferability of Options. This Option is not transferable by
the Holder except for transfers occurring by operation of law upon the death of
the Holder, provided that the transferee is an "accredited investor" as that
term is defined in Rule 501 or Regulation D promulgated pursuant to the
Securities Act of 1933, and, except as provided for in the foregoing portion of
this sentence, no interest in this Option may (either directly, indirectly, by
operation of law, or in any
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other manner) be sold, assigned or pledged by the Holder; and the Company shall
not be required to transfer any Units to any person or entity other than the
Holder.
10. Notices. Any and all notices or any other communication related to
this Option shall be given in writing either by personal delivery, by a
recognized courier service, or by registered or certified mail, return receipt
requested, with postage prepaid, and addressed as set forth below, or to such
other address for notice as either party shall have last furnished in writing to
the other party.
If to the Company
Xxx Xxxx, President
Wingra Technologies, LLC
000 Xxxxxxx Xxxxx, 0X
Xxxxxxx, Xxxxxxxxx 00000-0000
If to the Holder:
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Any such communication shall be deemed delivered (i) in the case of
personal or courier service delivery, on the date when so delivered; or (ii) in
the case of certified or registered mail, three (3) days after the date when
deposited in the United States mail with sufficient postage to effect such
delivery.
11. Operating Agreement. As a condition to the grant of this Option, if
the Holder is not already a party to the Operating Agreement, upon exercise of
this Option, the Holder shall execute and deliver to the Company, in addition to
his notice exercising this Option and as a condition to the acceptance by the
Company of any such exercise, an "Addendum to Amended and Restated Operating
Agreement" in substantially the form of Addendum A attached hereto.
12. Governing Laws. This Option is subject to all laws, regulations and
orders of any governmental authority which may be applicable thereto and,
notwithstanding any of the provisions hereof, the Holder shall not exercise this
Option nor will the Company be obligated to issue any Units hereunder if the
exercise of this Option or the issuance of such Units, as the case may be, would
constitute a violation by the Holder or the Company of any such law, regulation
or order or any provision thereof.
13. Securities Representations and Warranties. The Holder warrants and
represents as follows:
(a) The Holder is an "accredited investor" as that term is
defined in Rule 501 of Regulation D promulgated pursuant to the Securities Act
of 1933, as amended;
(b) The Holder is acquiring rights pursuant to this Option
Agreement for the Holder's own account, not as an agent or representative of
others, and not with the intent to resell or otherwise distribute the option
rights.
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(c) In the event that the Holder acquires any Units pursuant
to an exercise of the Holder's rights pursuant to this Option Agreement, such
Units will be acquired for the Holder's own account, not as an agent or
representative of others, and not with the intent to resell or otherwise
distribute the Units.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the date of grant set forth below.
WINGRA TECHNOLOGIES, LLC
By:
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Xxx Xxxx, President
HOLDER:
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ADDENDUM A
ADDENDUM TO OPERATING AGREEMENT
WINGRA TECHNOLOGIES, LLC
WHEREAS, the Members of Wingra Technologies, LLC, a Wisconsin limited
liability company (the "Company"), have entered into an Operating Agreement (the
"Operating Agreement") dated as of __________________________ [insert date of
most recent Operating Agreement or restatement thereof and indicate any
amendments and dates thereof, if applicable]; and
WHEREAS, pursuant to the terms and provisions of an Option Agreement
granted to the undersigned by the Company as of ___________________, the
undersigned has exercised an option to acquire ____ [insert number] Units ( as
the term "Unit" is defined in the Operating Agreement) of the Company; and
WHEREAS, as a condition to the undersigned becoming a Member of the
Company, the undersigned has agreed to execute this Addendum; and
WHEREAS, the undersigned acknowledges that the undersigned has received
and has thoroughly reviewed a copy of the Operating Agreement;
NOW, THEREFORE, acknowledging consideration, the undersigned hereby
acknowledges and agrees that the undersigned shall become a Member of the
Company, effective upon the acceptance of this Addendum by the Company; that the
undersigned shall be bound by all of the terms and provisions of the Operating
Agreement to the same extent as if the undersigned were a signatory to the
original Operating Agreement; and that the Units issued to the undersigned are
subject to all of the terms and provisions of the Operating Agreement.
Dated .
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Accepted by Company:
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President
Date of acceptance:
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