EXECUTION COPY
FOUNDER/EMPLOYEE STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 10th day of October 1996, by and between
ACUTE THERAPEUTICS, INC., a Delaware corporation (the "Company"), and Xxxxxx
Xxxxxxxx, Ph.D. ("Founder").
WHEREAS, the Founder and several other persons and entities (collectively,
the "Founders") desire to purchase shares of Common Stock of
the Company, par value $0.001 per share, (the "Common Stock") at a price of
$0.01 per share;
WHEREAS, each Founder has agreed to enter into an agreement substantially
similar to this Agreement (collectively, the "Founder/Employee Purchase
Agreements");
NOW THEREFORE, IT IS HEREBY AGREED:
1. Purchase of Shares. Subject to the terms hereof, the Company
hereby sells to Founder and Founder hereby purchases from the Company 67,500
shares of the Common Stock (the "Shares") at a price of $0.01 per share
("Purchase Price"). Following the purchase of Common Stock by the Founder and
all other Founders, the initial outstanding Shares of the Company shall be
held in accordance with Schedule I attached hereto.
2. Payment of Purchase Price. The Founder has paid the Purchase Price
by delivering to the Company at the time of execution of this Agreement a
check for $675.
3. Issuance of Shares. Upon receipt by the Company of the Purchase Price,
the Company shall issue a duly executed certificate evidencing the Shares in
the name of Founder.
4. "Market Stand-Off" Agreement. Founder hereby agrees that, during the
period specified by the Company and the underwriter or underwriters of common
stock (or other securities) of the Company, following the effective date of a
registration statement of the Company filed under the Securities Act of 1933,
as amended (the "Act"), Founder shall not, to the extent requested by the
Company and such underwriter, but in any case for a period not to exceed 180
days, directly or indirectly, sell, offer or contract to sell (including,
without limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any securities of the Company at any time during such period except common
stock included in such registration, provided, however, that (a) such agreement
shall be applicable only to the first such registration statement of the
Company which covers common stock (or other securities) to be sold on its
behalf to the public in an underwritten offering and (b) all other shareholders
of the Company holding securities of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to securities held by Founder until
the end of such period.
5. Representations and Warranties of Founder.
a. Investment Intent. This Agreement is made with Founder in reliance
upon his or her representation to the Company, which by his or her acceptance
hereof he or she confirms, that the Shares have been acquired with his or her
own funds for investment for an indefinite period for his or her own account,
not as a nominee or agent, and not with a view to the sale or distribution of
any part thereof, and that he or she has no present intention of selling,
granting participation in, or otherwise distributing the same. By executing
this Agreement, Founder further represents that he or she does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer, or grant participations, to such person or to any third person,
with respect to any of the Shares.
b. Restricted Securities. Founder understands that the Shares have
not been registered under the Act, on the ground that the sale provided for
in this Agreement is exempt from the registration requirements of the Act, and
that the Company's reliance on such exemption is predicated on his or her
representations set forth herein.
Founder understands that if the Company does not register with the
Securities and Exchange Commission pursuant to sections 12 or 15 of the
Securities Exchange Act of 1934 or if a registration statement covering the
Shares (or a filing pursuant to the exemption from registration under
Regulation A of the Act) under the Act is not in effect when he or she desires
to sell the Shares, he or she may be required to hold the Shares for an
indeterminate period. The Founder also acknowledges that he or she understands
that any sale of the Securities that might be made by him or her in reliance
upon Rule 144 under the Act may be made only in limited amounts in accordance
with the terms and conditions of that rule and that he or she may not be able
to sell the Shares at the time or in the amount he or she so desires. Founder
is familiar with Rule 144 and understands that the Shares constitute
"restricted securities" within the meaning of the Rule.
c. Investment Experience. In connection with the investment
representations made herein Founder represents that he or she is able to fend
for himself or herself in the transactions contemplated by this Agreement, has
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of his or her investment, has the
ability to bear the economic risks of his or her investment and has been
furnished with and has had access to such information as he or she has
requested and deems appropriate to his or her investment decision.
d. Limitations on Disposition. Founder agrees that in no event will
he or she make a disposition of any of the Shares, unless and until (a) her or
she shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
proposed disposition, and (b) he or she shall
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have furnished the Company with an opinion of counsel reasonably satisfactory
to the Company to the effect that (i) such disposition will not require
registration of such Shares under the Act, or (ii) that appropriate action
necessary for compliance with the Act has been taken, or (c) the Company
shall have waived, expressly and in writing, its rights under clauses (a) and
(b) of this subparagraph. In addition, prior to any disposition of any of the
Shares, the Company may require the transferee or assignee to provide in
writing investment representations and its agreement to the market stand-off
provisions hereof in a form acceptable to the Company.
The Company shall not be required (i) to transfer on its book any Shares
of the Company which shall have been sold or transferred in violation of any of
the provisions set forth in this Agreement, or (ii) to treat as owner of such
shares or to accord the right to vote as such owner or to pay dividends to any
transferee to whom such shares shall have been so transferred. Founder shall,
during the term of this Agreement, exercise all rights and privileges of a
shareholder of the Company with respect to the Shares after this issuance, and
prior to the repurchase, thereof. The restrictions on disposition imposed by
this Section 7(d) shall cease and terminate as to the Shares when: (i) such
securities shall have been effectively registered under the Act and sold by
the holder thereof in accordance with such registration, or (ii) an opinion
of the kind described in the second preceding sentence states that all future
transfers of such securities by the holder thereof would be exempt from
registration under the 1933 Act.
This paragraph d. is in addition to any restrictions imposed on the
Escrowed Shares under this Agreement and the Escrow Agreement.
e. Legends. All certificates representing any Shares of the Company
subject to the provisions of this Agreement shall have endorsed thereon the
following legends (except that such certificates shall not be required to bear
such legend after a transfer thereof if the transfer was made in compliance
with Rule 144 or pursuant to a registration statement or, if the opinion of
counsel referred to above is issued and provides that such legend is not
required in order to establish compliance with any provisions of the 1933 Act):
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS AND CONDITIONS OF A CERTAIN EMPLOYEE STOCK PURCHASE AGREEMENT
WHICH INCLUDE RESTRICTIONS RELATING TO A MARKET STAND-OFF AGREEMENT ON THE SALE
OF THE SECURITIES. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST
TO THE SECRETARY OF THE CORPORATION."
(ii) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE TRANSFERRED
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WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE
SECURITIES ACT OF 1933, OR PURSUANT TO RULE 144 UNDER THE ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT."
(iii) Any legend required to be placed thereon by applicable
state laws.
6. Miscellaneous.
a. 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.
b. Notices. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery
or upon deposit in the United States Post Office, by registered or certified
mail with postage and fees prepaid, addressed to the other party hereto at his
or her address hereinafter shown below his or her signature or at such other
address as such party may designate by ten (10) days' advance written notice to
the other party hereto.
c. Governing Law, Assignment and Enforcement. This Agreement is
governed by the internal law of New York and shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Founder, his or her heirs, executors,
administrators, guardians, successors and assigns. The prevailing party in any
action to enforce this Agreement shall be entitled to attorneys' fees and costs.
The parties agree that damages are not an adequate remedy for Founder's breach
hereof and the Company shall accordingly be entitled to specific performance of
this Agreement.
d. Amendments and Waivers. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous understandings, written or oral. This Agreement may
only be amended with the written consent of the parties hereto, or their
successors or assigns, and no oral waiver or amendment shall be effective under
any circumstances whatsoever.
e. Cooperation. Founder agrees to cooperate affirmatively with the
Company, to the extent reasonably requested by the Company, to enforce rights
and obligations pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ACUTE THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Secretary
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Founder:
/s/ Xxxxxx Xxxxxxxx, Ph.D.
Xxxxxx Xxxxxxxx, Ph.D.
Address: 0000 Xxxxxx Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
