EXHIBIT 10.15
STOCK RESTRICTION AGREEMENT
This STOCK RESTRICTION AGREEMENT (this "AGREEMENT"), dated as of
____________, is made by and between TolerRx, Inc., a Delaware corporation (the
"CORPORATION") and _____________________ (the "STOCKHOLDER").
WHEREAS, it is deemed to be in the best interests of the Corporation and
the Stockholder that provision be made for the continuity and stability of the
business and policies of the Corporation and, to that end, the Corporation and
the Stockholder hereby set forth their agreement with respect to the shares of
Stock (as hereinafter defined) owned by the Stockholder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
"ACT" shall mean the Securities Act of 1933, as amended.
"CAUSE" shall mean, with respect to the Stockholder, the Stockholder's
(i) material misconduct with respect to the business and affairs of the
Corporation, (ii) material neglect of duties or material failure to act which
can reasonably be expected to adversely effect the business and affairs of the
Corporation, (iii) material breach of any of the terms hereof or of any
agreement between the Corporation and the Stockholder, including, but not
limited to terms relating to non-disclosure, non-competition and invention
assignment or (iv) an act by the Stockholder involving moral turpitude or
constituting fraud, a felony or other criminal act (other than a misdemeanor
traffic violation) or, with respect to the abuse of a controlled substance which
materially impairs the performance of the Stockholder's duties with respect to
the Corporation.
"COMMON STOCK" shall mean the common stock, $0.001 par value per
share, of the Corporation.
"COST PER SHARE" shall mean $ per share, subject to adjustment
to reflect any stock split, stock dividend, reverse stock split, stock
combination, reclassification, recapitalization, or other similar change
involving or affecting such the Corporation's Common Stock.
"DESIGNATED PUBLIC OFFERING" shall mean a firm commitment underwritten
public offering of Common Stock of the Corporation registered under the Act,
pursuant to which (i) Common Stock is offered to the public at a price of at
least $2.00 (as set forth in the Certificate of Incorporation of the
Corporation, as amended, subject to adjustment to reflect stock splits, stock
dividends, stock combinations, recapitalizations and like occurrences, and (ii)
the net proceeds to the Corporation are at least $30,000,000.
"NON-VESTED STOCK" shall mean all issued and outstanding Stock held by
the Stockholder which does not constitute Vested Stock.
"SELL" "SALE" OR "SOLD", as to any Stock, shall mean to sell, or in
any other way, directly or indirectly, transfer, assign, distribute, encumber or
otherwise dispose of, either voluntarily or involuntarily; PROVIDED, HOWEVER,
that the terms "Sell" "Sale" or "Sold" shall not include the transfer, by gift
or otherwise, of any Stock by the Stockholder to any or all members of a class
of persons consisting
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of the Stockholder, his or her spouse or equivalent domestic partner and/or
descendants, or to a trust of which all of the beneficiaries are members of such
class (each, a "RELATED TRANSFEREE"); provided, that any such transfer to a
Related Transferee shall be permitted only on, and subject to, the express
conditions that:
(i) such Related Transferee shall be deemed to be a
Stockholder hereunder and shall hold the Stock subject to the provisions of this
Agreement; and
(ii) such Related Transferee executes all documents necessary
or desirable, in the reasonable judgment of the Corporation, to become a party
to, and be bound by the terms of, this Agreement, including, without limitation,
the Corporation's right to repurchase the Stock in the event of Termination of
Employment of the Stockholder set forth in Section 4 hereof, except that the
consideration to be paid with respect to such Stock on any such repurchase shall
be paid directly to such Related Transferee.
"STOCK" shall mean (i) shares of Common Stock of the Corporation
issued to the Stockholder as of the date hereof (ii) any additional shares of
capital stock of the Corporation into which such shares may be converted or for
which they may be exchanged or exercised; provided, however, that "Stock" shall
not include, for purposes of this Agreement, shares of Common Stock purchased by
the Stockholder through open market transactions using a registered
broker-dealer after the Corporation's initial underwritten public offering.
"TERMINATION OF EMPLOYMENT" shall mean the termination for any reason
whatsoever of the employer-employee, corporation-director,
corporation-contractor or corporation-consultant relationship between the
Corporation and the Stockholder, including, but not limited to, termination by
resignation, discharge (with or without Cause), lapse of agreement, retirement,
death or disability.
"VESTED STOCK" shall mean, with respect to any shares of Stock held by
the Stockholder, such number of shares of Stock which shall have become "vested"
as of the relevant date of determination pursuant to the following schedule:
Prior to the first anniversary of the Vesting Start Date %
On the first anniversary of the Vesting Start Date %
On the second anniversary of the Vesting Start Date %
On the third anniversary of the Vesting Start Date %
On the fourth anniversary of the Vesting Start Date %
"VESTING START DATE" ____________ ____, ______
SECTION 2. LIMITATIONS ON SALES OF STOCK BY THE STOCKHOLDER. The
Stockholder hereby agrees that she, he or it shall not at any time during the
term of this Agreement Sell any Stock, except for Sales of Vested Stock in
accordance with Section 3 hereof and except in connection with any repurchase by
the Corporation in accordance with Section 4 hereof.
SECTION 3. PROCEDURES ON SALE OF VESTED STOCK TO THIRD PARTIES BY
STOCKHOLDER. Except as otherwise expressly provided herein, the Stockholder
hereby agrees that she, he or it shall not Sell any Vested Stock, except in
accordance with the following procedures:
(a) The Stockholder shall first deliver to the Corporation a written
notice (the "SECTION 3 OFFER NOTICE"), which Section 3 Offer Notice shall (i)
specifically identify the party or parties to whom or which the Stockholder
proposes to Sell Vested Stock (such party or parties hereinafter
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referred to as the "IDENTIFIED Parties"), pursuant to a BONA FIDE written offer
from such Identified Parties ("THIRD PARTY OFFER"), (ii) include a copy of the
Third Party Offer, and (iii) be irrevocable for a period of 60 days after
delivery thereof, offering to the Corporation, all of the Vested Stock proposed
to be Sold by the Stockholder to such Identified Parties at the purchase price
and on the terms and conditions of payment specified in the Third Party Offer.
The Corporation and/or its designee shall have the right and option, at their
sole discretion, for a period of 60 days after receipt of the Section 3 Offer
Notice, to accept any or all of the Vested Stock offered at the purchase price
and upon the terms and conditions of payment stated in the Section 3 Offer
Notice. Such acceptance will be made by delivery of a written notice to the
Stockholder within said 60-day period.
(b) Sales of Vested Stock under the terms of Section 3(a) above shall
be made at the offices of the Corporation on a mutually satisfactory business
day within 30 days after the expiration of the aforesaid period. Delivery of
certificates or other instruments evidencing such Vested Stock duly endorsed for
transfer shall be made on such date against payment of the purchase price
therefor.
(c) If effective acceptance shall not be received pursuant to
Section 3(a) above with respect to all Vested Stock offered for Sale pursuant to
the Section 3 Offer Notice, then the Stockholder may Sell to the Identified
Parties all, but not less than all, of the Vested Stock so offered for Sale and
not so accepted by the Corporation and/or its designee at a price not less than
the price, and on terms not more favorable to the purchaser thereof than the
terms, stated in the Section 3 Offer Notice at any time within 90 days after the
expiration of the 60-day period required by Section 3(a) above. In the event
that the Vested Stock is not Sold by the Stockholder during such 90-day period,
the right of the Stockholder to Sell such Vested Stock shall expire and the
obligations of this Section 3 shall be reinstated; PROVIDED, HOWEVER, that in
the event that the Stockholder determines, at any time during such 90-day
period, that the Sale of all or any part of the remaining Vested Stock on the
terms set forth in the Section 3 Offer Notice is impractical, the Stockholder
can terminate the offer and reinstate the procedure provided in this Section 3
without waiting for the expiration of such 90-day period.
(d) Anything contained herein to the contrary notwithstanding, any
purchaser of Vested Stock pursuant to this Section 3 who is not a signatory to
an agreement with the Corporation that is substantially similar to this
Agreement shall agree in writing in advance with the parties hereto to be bound
by and comply with all applicable provisions of this Agreement and shall be
deemed to be a Stockholder for all purposes of this Agreement.
(e) Anything contained herein to the contrary notwithstanding, Vested
Stock held by the Stockholder shall no longer be subject to this Section 3 upon
and after a Designated Public Offering.
SECTION 4. RIGHTS TO REPURCHASE STOCK. The Stockholder hereby grants to the
Corporation certain repurchase rights with respect to the Stock as set forth in
this Section 4 and hereby agrees that she, he or it shall not Sell any Stock
that remains subject to such repurchase rights of the Corporation.
(a) In the event of Termination of Employment of the Stockholder, the
Corporation and/or its designee shall have the right and option, for a period of
60 days, to purchase from the Stockholder, and the Stockholder shall Sell or
cause to be Sold to the Corporation and/or its designee, as the case may be,
upon the exercise of such right, such number of shares of Non-Vested Stock and
Vested Stock (but only in the event of Termination of Employment for Cause)
owned by the Stockholder on the date of such Termination of Employment as is
specified by the Corporation and/or its designee, as the case may be, at a per
share price equal to the Cost Per Share. In the event of Termination of
Employment other than for Cause of the Stockholder, the Stockholder shall have
full right and title to all then Vested Stock and such Vested Stock shall not be
subject to the repurchase rights set forth in this Section 4(a). However, in
such event, the Stockholder shall execute an irrevocable voting proxy, in form
satisfactory to
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the Corporation, for the benefit of the Chief Executive Officer of the
Corporation for all of such Vested Stock. The repurchase rights provided in this
Section 4(a) shall be exercised by the Corporation or its designee, as the case
may be, by delivery to the Stockholder during the applicable aforesaid 60-day
period of a written notice of election to purchase such Stock.
(b) The number of shares of Stock subject to repurchase, at the time
of any stock dividend or other distribution made on or in respect of the shares
or any subdivision, combination, redemption or reclassification of the
outstanding capital stock of the Corporation or received in exchange for the
shares or any part thereof, shall be adjusted to give effect to such stock
dividend, other distribution, subdivision, combination, redemption or
reclassification.
(c) Sales of Stock effected under the terms of Section 4(a) hereof
shall be made at the offices of the Corporation on a mutually acceptable
business day within 15 days after the expiration of the period referred to in
Section 4(a). Delivery of certificates or other instruments evidencing such
Stock duly endorsed for transfer shall be made on such date against payment of
the purchase price therefor.
(d) Anything contained herein to the contrary notwithstanding, Vested
Stock held by the Stockholder shall no longer be subject to this Section 4 upon
and after a Designated Public Offering.
(e) In the event of a sale of the Corporation (whether by merger,
sale of all or substantially all of the assets or sale or other disposition of
greater than 50% of the voting capital stock (in a single transaction or series
of related transactions, occurring over a limited period of time, including a
recapitalization), and if the Stockholder experiences a Termination of
Employment other than for Cause within six months after the close of such sale,
then 100% of the Stock held by the Stockholder shall become Vested Stock.
SECTION 5. ACKNOWLEDGEMENTS AND COVENANTS; LEGENDS ON STOCK CERTIFICATES.
(a) In addition to complying with all other provisions hereof, the
Stockholder further acknowledges and agrees that:
(i) The Stock has not been registered under the Act, or any
applicable state securities laws by reason of exemptions from the
registration requirements of the Act and such laws, and the Stock (or any
part thereof) may not be sold, transferred or otherwise disposed of in the
absence of an effective registration statement for the Stock under the Act
or unless an exemption from such registration is available.
(ii) The Stockholder will not attempt to sell, transfer or
otherwise dispose of all or any portion of the Stock in the absence of an
effective registration statement or an opinion of reputable securities
counsel satisfactory in form and substance to the Corporation and its
counsel that such proposed sale, transfer or other disposition would not be
in violation of the Act and applicable state securities laws.
(iii) Appropriate restrictive endorsement(s) will be placed upon
the certificates evidencing the Stock to reflect the foregoing and that the
Corporation will give appropriate stop transfer instructions to the
person(s) in charge of the transfer of its securities.
(b) Certificates representing the Stock issued to the Stockholder
will bear legends in substantially the following forms:
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The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933, as amended, or any state securities laws. The securities may not
be pledged, hypothecated, sold or transferred in the absence of an
effective registration statement for the securities under the
Securities Act of 1933 and applicable state securities laws or an
opinion of counsel satisfactory to TolerRx, Inc. that such pledge,
hypothecation, sale or transfer is exempt therefrom under any such Act
and applicable state securities laws.
The transfer of this certificate and the shares represented by this
certificate are subject to the terms and conditions specified in the
TolerRx, Inc. 2000 Equity Incentive Plan, as amended, and the
Stock
Restriction Agreement, dated as of __________ between TolerRx, Inc.
and the holder of record of this certificate, and no transfer of this
certificate or the shares represented by this certificate shall be
valid or effective until such terms and conditions have been
fulfilled. Copies of such Plan and Agreement may be obtained at no
cost by written request made by the holder of record of this
certificate to the Secretary of TolerRx, Inc.
SECTION 6. UNDERWRITER'S LOCK-UP. Notwithstanding anything contained herein
to the contrary, the Stockholder agrees not to Sell any Stock for such period of
time after the consummation of an underwritten public offering of capital stock
of the Corporation, not to exceed 180 days after the closing of such
underwritten public offering, as may be requested by the managing underwriter of
such underwritten public offering and as may be agreed to by the Corporation in
order to effectuate such offering.
SECTION 7. ADDITIONAL SHARES OF STOCK; ETC. In the event additional shares
of Stock are issued by the Corporation to the Stockholder at any time during the
term of this Agreement, either directly or upon the exercise, conversion or
exchange of securities of the Corporation exercisable for or convertible or
exchangeable into shares of Stock, such additional shares of Stock shall, as a
condition to such issuance, become subject to the terms and provisions of this
Agreement.
SECTION 8. DURATION OF AGREEMENT. Except as otherwise stated herein, the
rights and obligations of the Stockholder under this Agreement shall terminate
upon the earlier to occur of (a) the Sale of all Stock owned by the Stockholder
in accordance with the terms hereof and (b) on the fifteenth (15th) anniversary
of the date of this Agreement, PROVIDED, in each case, that the obligations of
the Stockholder set forth in Sections 5 - 7 of this Agreement shall survive.
SECTION 9. SEVERABILITY; GOVERNING LAW. If any provisions of this Agreement
shall be determined to be illegal and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of
Delaware applicable to contracts made and to be
performed wholly therein.
SECTION 10. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the parties and their respective successors and permitted
assigns, legal representatives and heirs.
SECTION 11. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or by telecopy of sent by
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or at such other address as may hereafter be designated
in writing by such party to the other parties:
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(a) if to the Corporation, to:
TolerRx, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esquire
Telecopier: (000) 000-0000
(b) if to the Stockholder, to the address set forth below the
Stockholder's name on the signature page hereto.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (i) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (ii) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (iii) in the case of mailing, on the third business day after the
posting thereof.
SECTION 12. MODIFICATION. Except as otherwise provided herein, neither this
Agreement nor any provisions hereof can be modified, waived, changed, discharged
or terminated except by an instrument in writing signed by the party against
whom the enforcement of any modification, waiver, change, discharge or
termination is sought.
SECTION 13. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
SECTION 14. NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 15. ENTIRE AGREEMENT. This Agreement and the other writings
referred to herein or delivered pursuant hereto contain the entire agreement
among the parties hereto with respect to the subject matter hereof and supersede
all prior and contemporaneous written or oral agreements and understandings with
respect thereto.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Stock Restriction
Agreement as of the date first above written.
CORPORATION:
TOLERRX, INC.
By:
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STOCKHOLDER:
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Name:
Address:
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Facsimile:
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