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Exhibit
10.2
SECOND AMENDED AND
RESTATED STOCK SALE RESTRICTION AGREEMENT
This Second Amended and
Restated Stock Sale Restriction Agreement (this “
Agreement ”) is entered into as of February 27,
2008 (the “ Effective Date ”) by and between
Luna Innovations Incorporated, a Delaware corporation (the “
Company ”) and Dale E. Messick (“
Employee ”). The Company and Employee are referred to
herein as the “ Parties ” and each as a “
Party .”
RECITALS
WHEREAS, the Parties entered
into a certain letter agreement dated on or about February 1,
2006 (the “ Stock Sale Restriction Agreement ”)
and the Parties entered into an Amended and Restated Stock Sale
Restriction Agreement dated on or about January 23, 2007,
whereby Employee agreed to certain restrictions on the sale and
transfer of (i) any outstanding shares of the Company’s
Common Stock, par value $0.001 per share (“ Common
Stock ”) (excluding shares that were received upon
exercise of options prior to December 31, 2005) and
(ii) any shares of Common Stock to be received upon exercise
of options to purchase Common Stock, whether vested or unvested,
that Employee held and acquired from the Company prior to the
Company’s initial public offering;
WHEREAS, as of the Effective
Date, Employee beneficially held an aggregate of 235,627 shares of
Common Stock, which consisted of 10,627 outstanding shares of
Common Stock and 225,000 shares of Common Stock issuable upon
exercise of outstanding options (collectively, the “
Subject Securities ”), excluding any shares that were
received upon exercise of options or warrants prior to
December 31, 2005;
WHEREAS, the Parties agree
and acknowledge that it is in the interests of the Company and its
stockholders to amend and restate the Amended and Restated Stock
Sale Restriction Agreement to provide for additional restrictions
on the number of Subject Securities which Employee can sell, with
the expectation that such additional restrictions may help to
prolong the Company’s eligibility for Small Business
Innovation Research (“ SBIR ”) grants;
and
WHEREAS, the Parties desire
to amend and restate the Amended and Restated Stock Sale
Restriction Agreement pursuant to the terms and conditions provided
herein.
NOW, THEREFORE, in
consideration of the premises and covenants set forth herein and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
AGREEMENT
1. Employee hereby irrevocably agrees
that he or she will not, directly or indirectly, (i) sell,
offer for sale, pledge or otherwise dispose of (except as otherwise
provided herein) greater than zero percent (0%) of Employee’s
Subject Securities in calendar year 2008, ten percent (10%) of
Employee’s Subject Securities in calendar year 2009 and ten
percent (10%) of Employee’s Subject Securities in
calendar year 2010 (each such amount the “ Annual
Limit ”) or (ii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in
part, any of
the economic benefits or risks of
ownership of greater than the Annual Limit in any given year of the
Employee’s Subject Securities, whether any such transaction
described in clause (i)
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