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EXHIBIT 10.9
SONUS PHARMACEUTICALS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
UNDER
1999 NONQUALIFIED STOCK INCENTIVE PLAN
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is entered
into as of _______________, ______ by and between ______________________
(hereinafter referred to as "Purchaser"), and SONUS PHARMACEUTICALS, INC., a
Delaware corporation (hereinafter referred to as the "Company"), pursuant to the
Company's 1999 Stock Incentive Plan (the "Plan").
R E C I T A L S :
A. Purchaser is an employee, director, consultant or other person who
provides services to the Company or a parent or subsidiary of the Company, as
those terms are defined in Sections 424(e) and 424(f) of the Internal Revenue
Code of 1986, as amended (a "Service Provider"), and in connection therewith has
rendered services for and on behalf of the Company.
B. The Company desires to issue shares of common stock to Purchaser for
the consideration set forth herein to provide an incentive for Purchaser to
remain a Service Provider of the Company and to exert added effort towards its
growth and success.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the parties agree as
follows:
1. ISSUANCE OF SHARES. The Company hereby offers to issue to Purchaser
an aggregate of _____________ (_____ ) shares of the Common Stock of the Company
(the "Shares") on the terms and conditions herein set forth. Unless this offer
is earlier revoked in writing by the Company, Purchaser shall have ten (10) days
from the date of the delivery of this Agreement to Purchaser to accept the offer
of the Company by executing and delivering to the Company two copies of this
Agreement, without condition or reservation of any kind whatsoever, together
with the consideration to be delivered by Purchaser pursuant to Section 2 below.
2. CONSIDERATION. The purchase price for the Shares shall be $_____ per
share, or $________ in the aggregate, which shall be paid by the delivery of
Purchaser's check payable to the Company.
3. VESTING OF SHARES. The Shares acquired hereunder shall vest and
become "Vested Shares" as follows:
On or After: No. of Shares:
Shares which have not yet become vested are herein called "Unvested Shares." No
additional Shares shall vest after the date of termination of Purchaser's
"Continuous Service" (as defined below). As used herein, the term "Continuous
Service" means (i) employment by either the Company or any parent or subsidiary
corporation of the Company, which is uninterrupted except for vacations, illness
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(except for permanent disability, as defined in Section 22(e)(3) of the Code)
or leaves of absence which are approved in writing by the Company or any of such
other employer corporations, if applicable, (ii) service as a member of the
Board of Directors of the Company, or (iii) so long as Purchaser is engaged as a
consultant or service provider to the Company.
4. RECONVEYANCE UPON TERMINATION OF SERVICE.
(a) RECONVEYANCE OPTION. If, at any time prior to _____ (__)
years from the date of issuance of the Shares (the "Grant Date"), Purchaser
should cease to be a Service Provider of the Company or a parent or its
subsidiaries, for any reason (hereinafter referred to as the "Termination
Date"), the Company shall have the option to acquire (hereinafter referred to as
the "Reconveyance Option") from Purchaser all or part of the Unvested Shares.
(b) CONSIDERATION FOR RECONVEYANCE OPTION. The Company shall pay
Purchaser as consideration for the unvested Shares to be acquired upon exercise
of the Reconveyance Option the original purchase price paid by Purchaser.
(c) PROCEDURE FOR EXERCISE OF RECONVEYANCE OPTION. The Company
shall have the right to exercise the Reconveyance Option by acquiring all or any
part of the Shares subject to the Reconveyance Option by delivery to Purchaser
and/or any other person obligated to transfer the Shares written notice of
election to purchase the Shares or any portion thereof within sixty (60) days
following the Termination Date. Such written notice shall indicate the number of
Shares to be purchased by the Company. In the event that the Company does not
elect to exercise the Reconveyance Option as to all or part of the Shares under
the provisions of this Section 4 by written notice to Purchaser within the
period specified above, the Reconveyance Option shall expire as to all Shares
which the Company has not elected to acquire.
(d) NOTIFICATION AND SETTLEMENT. In the event that the Company
has elected to exercise the Reconveyance Option as to part or all of the Shares
within the period described above, Purchaser or such other person shall deliver
to the Company certificate(s) representing the Shares to be acquired by the
Company within thirty (30) days following the date of the notice from the
Company. The Company shall deliver to Purchaser against delivery of the Shares,
checks of the Company payable to Purchaser and/or any other person obligated to
transfer the Shares in the aggregate amount of the purchase price to be paid as
set forth in paragraph (b) above.
(e) NONTRANSFERABILITY AND DEPOSIT OF UNVESTED SHARES. Unvested
Shares may not be sold, assigned, transferred, pledged or otherwise encumbered
or disposed of without the prior written consent of the Company, which consent
may be given or withheld in its sole discretion. Purchaser shall deposit with
the Company certificates representing the Unvested Shares, together with a duly
executed stock assignment separate from certificate in blank, which shall be
held by the Secretary of the Company. Purchaser shall be entitled to vote and to
receive dividends and distributions on all such deposited Shares.
(f) TERMINATION. The provisions of this Section 4 shall
automatically terminate, and the Shares shall not be subject to the Reconveyance
Option, immediately prior to the consummation of a Change in Control (as defined
in Section 2.4 of the Plan), unless provision is made in writing in connection
with such transaction for the continuance or assumption of this
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Agreement or the substitution for this Agreement of a new agreement of
comparable value covering shares of a successor corporation, with appropriate
adjustments as to the number and kind of shares and the purchase price, in which
event this Agreement or the new agreement substituted therefor shall continue in
the manner and under the terms so provided. If such provision is not made in
such transaction, then the Administrator shall cause written notice of the
proposed transaction to be given to Purchaser not less than thirty (30) days
prior to the anticipated effective date of the proposed transaction, and the
Shares, if not already fully vested, shall concurrent with and conditioned upon
the effective date of the proposed transaction, be accelerated and become fully
vested at such time.
5. ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE. In the event that the
outstanding Shares of Common Stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization, stock split,
combination of shares, reclassification, stock dividend, or other change in the
capital structure of the Company, then Purchaser shall be entitled to new or
additional or different shares of stock or securities, in order to preserve, as
nearly as practical, but not to increase, the benefits of Purchaser under this
Agreement, in accordance with the provisions of Section 4.2 of the Plan. Such
new, additional or different shares shall be deemed "Shares" for purposes of
this Agreement and subject to all of the terms and conditions hereof.
6. SHARES FREE AND CLEAR. All Shares purchased by the Company pursuant
to this Agreement shall be delivered by Purchaser free and clear of all claims,
liens and encumbrances of every nature (except the provisions of this Agreement
and any conditions concerning the Shares relating to compliance with applicable
federal or state securities laws), and the purchaser thereof shall acquire full
and complete title and right to all of the shares, free and clear of any claims,
liens and encumbrances of every nature (again except for the provisions of this
Agreement and such securities laws).
7. LIMITATION OF COMPANY'S LIABILITY FOR NONISSUANCE. The Company agrees
to use its reasonable best efforts to obtain from any applicable regulatory
agency such authority or approval as may be required in order to issue and sell
the Shares to Purchaser pursuant to this Agreement. Inability of the Company to
obtain, from any such regulatory agency, authority or approval deemed by the
Company's counsel to be necessary for the lawful issuance and sale of the Shares
hereunder and under the Plan shall relieve the Company of any liability in
respect of the nonissuance or sale of such Shares as to which such requisite
authority or approval shall not have been obtained.
8. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
personally delivered or three (3) days after being mailed, by United States
certified or registered mail, prepaid, to the parties or their assignees at the
addresses set forth opposite their signatures below (or such other address as
shall be given in writing by either party to the other).
9. BINDING OBLIGATIONS. All covenants and agreements herein contained by
or on behalf of any of the parties hereto shall bind and inure to the benefit of
the parties hereto and their permitted successors and assigns.
10. CAPTIONS AND SECTION HEADINGS. Captions and section headings used
herein are for convenience only, and are not part of this Agreement and shall
not be used in construing it.
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11. AMENDMENT. This Agreement may not be amended, waived, discharged, or
terminated other than by written agreement of the parties.
12. ENTIRE AGREEMENT. This Agreement and the Plan constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior or contemporaneous written or oral agreements and
understandings of the parties, either express or implied.
13. ASSIGNMENT. No party hereto shall have the right, without the prior
written consent of the other party, to sell, assign, mortgage, pledge or
otherwise transfer any interest or right created hereby. This Agreement is made
solely for the benefit of the parties hereto, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue of
this Agreement.
14. SEVERABILITY. Should any provision or portion of this Agreement be
held to be unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one agreement and any
party hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be binding upon Purchaser and the Company at such time as the
Agreement, in counterpart or otherwise, is executed by Purchaser and the
Company.
16. APPLICABLE LAW. This Agreement shall be construed under, and
enforced in accordance with and governed by the laws of the State of California.
17. NO AGREEMENT TO EMPLOY. Nothing in this Agreement shall affect any
right with respect to continuance of employment by the Company or any of its
subsidiaries. The right of the Company or any of its subsidiaries to terminate
at will the Purchaser's employment at any time (whether by dismissal, discharge
or otherwise), with or without cause, is specifically reserved, subject to any
other written employment agreement to which the Company and Purchaser may be a
party.
18. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with any
registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Optionee will not sell or otherwise dispose of any Purchased Shares without the
prior written consent of the Company or such underwriters, as the case may be,
for a period of time (not to exceed 90 days) from the effective date of such
registration as the Company or the underwriters may specify.
19. TAX ELECTIONS. Purchaser acknowledges that Purchaser has considered
the advisability of all tax elections in connection with the purchase of the
Shares hereunder, including the making of an election under Section 83(b) under
the Internal Revenue Code of 1986, as amended, and that the Company has no
responsibility for the making of any such election.
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20. ATTORNEYS' FEES. If any party shall bring an action in law or equity
against another to enforce or interpret any of the terms, covenants and
provisions of this Agreement, the prevailing party in such action shall be
entitled to recover reasonable attorneys' fees and costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY:
SONUS PHARMACEUTICALS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
PURCHASER:
___________________________________
___________________________________
(Print Name)
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CONSENT AND RATIFICATION OF SPOUSE
The undersigned, the spouse of _____________________, a party to the
attached Restricted Stock Purchase Agreement (the "Agreement"), dated as of ,
_____ hereby consents to the execution of said Agreement by such party; and
ratifies, approves, confirms and adopts said Agreement, and agrees to be bound
by each and every term and condition thereof as if the undersigned had been a
signatory to said Agreement, with respect to the Shares (as defined in the
Agreement) made the subject of said Agreement in which the undersigned has an
interest, including any community property interest therein.
I also acknowledge that I have been advised to obtain independent
counsel to represent my interests with respect to this Agreement but that I have
declined to do so and I hereby expressly waive my right to such independent
counsel.
Date:______________________________ ___________________________________
(Signature)
___________________________________
(Print Name)
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