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
Xxxxxxx Xxxxxxxx, M.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 30,000 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 $300.
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 extend 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 that 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.
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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)
he 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 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 books 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 the 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."
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(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,
ANY MAY NOT BE TRANSFERRED 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 the 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: (Signature of Xxxxxx X. Xxxxxxxx, Ph.D.)
Xxxxxx X. Xxxxxxxx, Ph.D.
President
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Founder:
(Signature of Xxxxxxx Xxxxxxxx, M.D.)
Xxxxxxx Xxxxxxxx, M.D.
Xxxxxxx X. Xxxxxxxx, M.D.
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
