Exhibit 10.9
GENE LOGIC INC.
Stock Restriction Agreement
AGREEMENT dated as of December 20, 1996, by and between Gene Logic Inc., a
Delaware corporation (the "Company") and Xxxx X. Xxxxxxx (the "Stockholder").
W I T N E S S E T H
WHEREAS, the Stockholder has as of the date of this Agreement acquired
25,000 shares of the Company's Common Stock (the "Shares");
WHEREAS, the Stockholder is an executive officer of the Company; and
WHEREAS, the parties hereto desire to provide for the continuity of
ownership and management of the Company to best further the interests of the
Company and its present and future stockholders;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Repurchase Option.
(a) If the Stockholder shall for any reason (including, without
limitation, involuntary removal with or without cause) cease to be employed by
the Company, the Company shall have an irrevocable and exclusive right, for 60
days from the date upon which the Stockholder shall so cease to be employed by
the Company (which date shall be determined in the sole reasonable judgment of
the Company and shall be referred to herein as the "Termination Date"), to
purchase all or any portion of the Shares, other than Vested Shares (as such
term is defined below).
(b) "Vested Shares" shall mean those Shares released from the
Company's repurchase option, as set forth in Section 1(a) above, in accordance
with the following schedule, subject to the continued service of the Stockholder
as an employee of the Company:
o 6,250 Shares on the date hereof
o An additional 521 Shares on the first day of each month
beginning on July 1, 1997 and continuing through and including May 1, 2000
o An additional 515 Shares on July 1, 2000 (at which time, all
25,000 Shares shall have become Vested Shares).
If the Stockholder ceases to be an employee of the Company, no
further shares beyond those already vested upon the Termination Date shall vest
pursuant to this Agreement.
If (i) the Company is merged or consolidated with, or all or
substantially all of its assets are acquired by, another entity, or (ii) the
Company issues and sells shares of its Common Stock to the public in a firm
underwriting pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") and the Stockholder
has continued to serve as an employee of the Company through the effective date
of such merger, consolidation, sale or public offering, then upon the
consummation of such merger, consolidation, sale or public offering all unvested
Shares held by the Stockholder on such date shall immediately become Vested
Shares and the Company's repurchase right under this Section 1 shall terminate.
(c) The purchase price at which the Company may exercise its option
to purchase the Shares under this Section 1 (the "Option Price") shall be $.15
per share.
2. Right of First Refusal. In the event the Stockholder shall desire to
sell or otherwise dispose of any portion of the Shares, including the Vested
Shares, the Stockholder shall (i) obtain an irrevocable and unconditional bona
fide offer in writing (the "Bona Fide Offer") for the purchase thereof and (ii)
give written notice (the "Option Notice") to the Company setting forth his
desire to sell such Shares, which Option Notice shall be accompanied by a
photocopy of the original executed Bona Fide Offer. The Company shall have a
non-assignable option, exercisable for 30 days from receipt of the Option
Notice, to purchase any or all shares proposed to be sold, at a price and on
terms identical to those set forth in the Bona Fide Offer.
3. Restrictions on Transfer. The Stockholder may not sell, assign,
transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise, or
in any way encumber all or any of the Shares, except as provided in this
Agreement. Notwithstanding the foregoing, the Stockholder may transfer all or
any of the Shares to any member of his family or to any trust for the benefit of
any such family member or the Stockholder, provided that any such transferee
shall agree in writing, as a condition to such transfer, to be bound by all of
the provisions of this Agreement. As used herein, the word "family" shall mean
any parent, spouse, lineal descendant, brother or sister.
4. Adjustments. If there shall be any change in the Common Stock of the
Company through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination or exchange of shares, or the like, all of
the terms and provisions of this Agreement shall apply to any new, additional or
different shares of securities issued to the Stockholder as replacements for the
Shares or otherwise as a result of such event, and the price and the number of
shares or other securities that may be purchased by the Company pursuant to this
Agreement shall be appropriately adjusted.
-2-
5. Recognition of Transferee. The Company shall not (i) transfer on its
books record ownership of any Shares which shall have been sold or transferred
in violation of any of the provisions set forth in this Agreement or (ii)
recognize the right to vote, or to receive dividends upon, such Shares with
respect to any transferee to whom such Shares shall have been so transferred.
6. Rights of Stockholder. This Agreement shall not be deemed to be an
employment contract, and nothing in this Agreement shall affect in any way the
right or power of the Company to terminate the Stockholder's service as a
consultant to the Company.
7. Specific Enforcement. Each of the parties hereto acknowledges that the
parties will be irreparably damaged in the event that this Agreement is
breached. Upon a breach or threatened breach in the terms, covenants or
conditions of this Agreement by either of the parties hereto, the other party
shall be entitled (in addition to all other remedies) to a temporary or
permanent injunction, without showing any actual damage, or a decree for
specific performance, in accordance with the provisions hereof.
8. Notices. Any notice required to be given hereunder shall be in writing
and shall be deemed to be properly given when sent by registered or certified
mail, return receipt requested, addressed, if to the Company, to its President
at the Company's principal office, and if to the Stockholder, to his address as
shown on the stock transfer records of the Company, or in either case to such
other address as to which either party shall give the other notice pursuant to
this Section.
9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
10. Waivers; Amendments. No waiver of any right hereunder by either party
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by either party of any breach of this Agreement shall be held to
constitute a waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all other remedies
provided by law. This Agreement may not be amended except in writing signed by
the parties hereto.
11. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the respective legal representatives, successors and
assigns of the parties hereto.
12. Severability. If any provision of this Agreement shall be declared
void and unenforceable by any judicial or administrative authority, the validity
of any other provisions and of the entire Agreement shall not be affected
thereby.
-3-
13. Prior Understandings. This Agreement represents the complete agreement
of the parties with respect to the transactions contemplated hereby and
supersedes all prior agreement and understandings.
14. Termination. The Company's right of first refusal set forth in Section
2 shall terminate upon the consummation of an underwritten public offering of
the Company's Common Stock, pursuant to an effective registration statement
under the Securities Act, in which the aggregate net proceeds to the Company
exceed $10,000,000.
15. Headings. Headings in this Agreement are included for reference only
and shall have no affect upon the construction or interpretation of any part of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal,
as of the date first above written.
GENE LOGIC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
President
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
-4-
