CARDICA, INC.
Exhibit 99.2
CARDICA, INC.
1997 EQUITY INCENTIVE PLAN, AS AMENDED
RESTRICTED STOCK PURCHASE AGREEMENT
RESTRICTED STOCK PURCHASE AGREEMENT
This
Restricted Stock Purchase Agreement (the
“Agreement”) is made as of the
___ day
of ___, by and between Cardica, Inc., a Delaware corporation (the “Company”),
and ___ (“Purchaser”).
Whereas, the Board of Directors of the Company approved the issuance and sale to
Purchaser of ___ (___) shares of common stock of the Company pursuant to the
Company’s 1997 Equity Incentive Plan, as amended to date (the “Plan”); and
Whereas, the Company desires to issue, and Purchaser desires to acquire, stock of the
Company as herein described, on the terms and conditions hereinafter set forth.
Now, Therefore, It Is Agreed between the parties as follows:
1. Incorporation of Plan. This Agreement is subject to all of the terms and
conditions as set forth regarding the purchase and sale of restricted stock in the Plan. If there
is a conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan
shall control. Defined terms not explicitly defined in this Agreement but defined in the Plan
shall have the same definitions as in the Plan.
2. Purchase and Sale of Stock. Purchaser hereby agrees to purchase from the
Company, and the Company hereby agrees to sell to Purchaser, an aggregate of ___
(___) shares of the Common Stock of the Company (the “Stock”) at a purchase price of
___ dollars ($___) per share, for an aggregate purchase price of thirty thousand dollars
($___), payable in services rendered to the Company. The closing hereunder, including
delivery of the Stock, shall occur at the offices of the Company immediately following the
execution of this Agreement, or at such other time and place as the parties may mutually agree.
3. Limitations on Transfer. Purchaser shall not assign, hypothecate, donate,
encumber or otherwise dispose of any interest in the Stock except in compliance with the provisions
herein and applicable securities laws. Furthermore, the Stock shall be subject to any right of
first refusal in favor of the Company or its assignees that may be contained in the Company’s
Bylaws. The Company shall not be required (a) to transfer on its books any shares of Stock of the
Company which shall have been transferred in violation of any of the provisions set forth in this
Agreement or (b) 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.
4. Restrictive Legends. All certificates representing the Stock shall have endorsed
thereon legends in substantially the following forms (in addition to any other legend which may be
required by other agreements between the parties hereto):
(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
(b) “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST
REFUSAL OPTION IN FAVOR OF THE COMPANY AND/OR ITS ASSIGNEE(S) AS PROVIDED IN THE BYLAWS OF THE
COMPANY.”
1.
(c) Any legend required by appropriate blue sky officials.
5. Investment Representations. In connection with the purchase of the
Common Stock, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company’s business affairs and financial condition and
has acquired sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the Common Stock. Purchaser is acquiring the Common Stock for investment for
Purchaser’s own account only and not with a view to, or for resale in connection with, any
“distribution” thereof within the meaning of the Securities Act of 1933 (the “Securities Act”).
(b) Purchaser understands that the Common Stock has not been registered under the
Securities Act by reason of a specific exemption therefrom pursuant to Rule 701 under the
Securities Act of 1933 and pursuant to Section 25102(o) of the California Corporations Code.
(c) Purchaser acknowledges and understands that the Common Stock must be held
indefinitely unless the Common Stock is subsequently registered under the Securities Act or an
exemption from such registration is available. Purchaser further acknowledges and understands that
the Company is under no obligation to register the Common Stock. Purchaser understands that the
certificate evidencing the Common Stock will be imprinted with a legend that prohibits the transfer
of the Common Stock unless the Common Stock is registered or such registration is not required in
the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules 144 and 701, under the
Securities Act, as in effect from time to time, which, in substance, permit limited public resale
of “restricted securities” acquired, directly or indirectly, from the issuer thereof (or from an
affiliate of such issuer), in a non-public offering subject to the satisfaction of certain
conditions. Rule 701 provides that if the issuer qualifies under Rule 701 at the time of issuance
of the securities, such issuance will be exempt from registration under the Securities Act. In the
event the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the securities exempt under Rule 701 may be sold by Purchaser
ninety (90) days thereafter, subject to the satisfaction of certain of the conditions specified by
Rule 144 and the market stand-off provision described in Purchaser’s Stock Option Agreement.
(e) In the event that the sale of the Common Stock does not qualify under Rule 701
at the time of purchase, then the Common Stock may be resold by Purchaser in certain limited
circumstances subject to the provisions of Rule 144, which requires, among other things: (i) the
availability of certain public information about the Company and (ii) the resale occurring
following the required holding period under Rule 144 after the Purchaser has purchased, and made
full payment of (within the meaning of Rule 144), the securities to be sold.
(f) Purchaser further understands that at the time Purchaser wishes to sell the
Common Stock there may be no public market upon which to make such a sale, and that, even if such a
public market then exists, the Company may not be satisfying the current public current information
requirements of Rule 144 or 701, and that, in such event, Purchaser would be precluded from selling
the Common Stock under Rule 144 or 701 even if the minimum holding period requirement had been
satisfied.
(g) Purchaser further warrants and represents that Purchaser has either (i)
preexisting personal or business relationships, with the Company or any of its officers, directors
or controlling persons, or (ii) the capacity to protect his own interests in connection with the
purchase of the Common Stock by virtue of the business or financial expertise of the Purchaser or
of professional advisors to Purchaser who are unaffiliated with and who are not compensated by the
Company or any of its affiliates, directly or indirectly.
6. Market Stand-Off Agreement. Purchaser shall not sell, dispose of, transfer, make
any short sale of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, any Common Stock of the Company held by
Purchaser, including the Stock (the “Restricted Securities”), for a period of time specified by the
managing underwriter(s) (not to exceed one hundred eighty (180)
2.
days) following the effective date of a registration statement of the Company filed under the
Securities Act. Purchaser agrees to execute and deliver such other agreements as may be reasonably
requested by the Company and/or the managing underwriter(s) which are consistent with the foregoing
or which are necessary to give further effect thereto. In order to enforce the foregoing covenant,
the Company may impose stop-transfer instructions with respect to Purchaser’s Restricted Securities
until the end of such period. The underwriters of the Company’s stock are intended third party
beneficiaries of this Section 6 and shall have the right, power and authority to enforce the
provisions hereof as though they were a party hereto.
7. Miscellaneous.
(a) Notices. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or sent by telegram or fax or upon
deposit in the United States Post Office, by registered or certified mail with postage and fees
prepaid, or upon deposit with a nationally recognized overnight carrier with delivery confirmation
requested, addressed to the other party hereto at his address hereinafter shown below its signature
or at such other address as such party may designate by ten (10) days’ advance written notice to
the other party hereto.
(b) Successors and Assigns. This Agreement 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 Purchaser, Purchaser’s successors, and assigns.
(c) Attorneys’ Fees; Specific Performance. Purchaser shall reimburse the Company
for all costs incurred by the Company in enforcing the performance of, or protecting its rights
under, any part of this Agreement, including reasonable costs of investigation and attorneys’ fees.
(d) Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The parties agree that any action brought by
either party to interpret or enforce any provision of this Agreement shall be brought in, and each
party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company’s principal place of business.
(e) Further Execution. The parties agree to take all such further action(s) as may
reasonably be necessary to carry out and consummate this Agreement as soon as practicable, and to
take whatever steps may be necessary to obtain any governmental approval in connection with or
otherwise qualify the issuance of the securities that are the subject of this Agreement.
(f) Independent Counsel. Purchaser acknowledges that this Agreement has been
prepared on behalf of the Company by Xxxxxx Godward llp, counsel to the Company and that
Xxxxxx Godward llp does not represent, and is not acting on behalf of, Purchaser.
Purchaser has been provided with an opportunity to consult with Purchaser’s own counsel with
respect to this Agreement.
(g) Entire Agreement; Amendment. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes and merges all prior
agreements or understandings, whether written or oral. This Agreement may not be amended, modified
or revoked, in whole or in part, except by an agreement in writing signed by each of the parties
hereto.
(h) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of
the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of
the Agreement shall be enforceable in accordance with its terms.
(i) Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which together shall constitute one instrument.
[Remainder of Page Intentionally Left Blank]
3.
In Witness Whereof, the parties hereto have executed this Restricted Stock Purchase
Agreement as of the date above written.
| Cardica, Inc. |
||||
| By: | ||||
| Xxxxxxx Xxxxxx, M.D. | ||||
| President and CEO | ||||
| Address: | 000 Xxxxxxx Xxxxx | |||
| Xxxxxxx Xxxx, XX 00000 |
| Purchaser: | |||||
| Address: | |||||
