| UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF [COMPANY NAME] IN LIEU OF A MEETING |
The undersigned, being all of the members of the board of directors (the “Board”) of [COMPANY NAME], a [STATE] corporation (the “Corporation”), acting by written consent without a meeting pursuant to Section [applicable section of the state corporation law], does hereby consent to the adoption of the following resolutions:
Determination of Fair Market Value
Whereas, the Board has determined that it is in the best interests of the Corporation and its stockholders to determine the fair market value per share of the Corporation’s common stock (“Common Stock”) for the purposes of granting stock awards under the [PLAN NAME] (the “Plan”) and the recipients’ filing of Section 83(b) elections in connection therewith;
Whereas, the Board is not in receipt of any term sheets for financings or acquisitions of the Corporation that are not reflected in the information the Board has considered;
Whereas, the Board has considered all material information that is reasonably likely to affect the per share value of the Common Stock for purposes of compliance with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), and recipients’ filing of Section 83(b) elections in connection with receiving stock awards under the Plan as of the date hereof, including (a) the earnings history and financial performance of the Corporation, (b) the current prospects and expected operating results for the Corporation (including the present value of the anticipated future cash flows of the Corporation), (c) the value of the tangible and intangible assets of the Corporation, (d) recent material events in the Corporation’s operations (such as the launch of a new product, a change in the business that materially affects revenue projections, the resolution of material litigation or the issuance of a patent), (e) the market value of stock or equity interests in similar corporations and other entities engaged in trades or businesses substantially similar to those engaged in by the Corporation and whose stock or equity interests can be valued through nondiscretionary, objective means, (f) recent arm’s length transactions and proposed transactions involving the sale or transfer of the Common Stock or other equity interests, (g) control premiums or discounts for lack of marketability, and (h) such other items as the Board deems material to determine in good faith the fair market value of a share of the Common Stock; and
NOW, THEREFORE, BE IT RESOLVED:
Resolved, that the Board hereby determines, after due consideration of the factors set forth above, that the per share fair market value of the Common Stock for purposes of compliance with Section 409A and recipients’ filing of Section 83(b) elections in connection with receiving stock awards under the Plan as of the date hereof is not more than $[FAIR MARKET VALUE PER SHARE] (such amount, “Today’s FMV”).