EXHIBIT 10.4
DYAX CORP.
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (this "Agreement") is entered
into as of October __, 1999 (the "Effective Date"), by and between Dyax Corp., a
Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx, Trustee under the
Xxxxxxx X. Xxxxxxxx Living Trust dated July 24, 1997 ("Purchaser").
RECITALS
A. The Purchaser has commenced employment with the Company as Executive
Vice President, Finance and Administration, and Chief Financial Officer pursuant
to a letter agreement, dated August 25, 1999, which provides in part that the
Company shall issue and sell certain "Restricted Stock" to Executive on the
terms herinafter set forth.
B. The Company desires to issue and sell, and Purchaser desires to
purchase, shares of Common Stock of the Company, on the terms and conditions
hereinafter set forth, as "Restricted Stock" issued pursuant to the Company's
1995 Equity Incentive Plan (as amended to date, the "Plan"). Capitalized terms
not otherwise defined herein have the meanings given to them in the Plan.
Accordingly, it is agreed between the parties as follows:
1. Purchaser hereby agrees to purchase from the Company, and the
Company agrees to sell to the Purchaser, 25,000 shares of the Company's Common
Stock, par value $0.01 per share, at a purchase price equal to $2.00 per share,
payable in cash at the closing (hereinafter sometimes collectively referred to
as the "Stock"). The closing hereunder shall be deemed to have occurred on the
Effective Date or at such later date as the Company receives payment of the
purchase price.
2. (a) Purchaser shall not sell or otherwise transfer any
shares of Stock unless prior to any sale or other transfer thereof, Purchaser
(or his personal representative, as the case may be) shall provide the
Company with written notice, in the manner provided in Section 14 hereof,
describing the number of shares of Stock intended to be sold or transferred,
the price and the general terms of the proposed sale or transfer.
(b) The Company shall have the right (the "First Refusal
Right") at any time within sixty (60) days after the notice required by Section
2(a) above to purchase from Purchaser (or his personal representative, as the
case may be) up to but not exceeding the number of shares of the Stock specified
in, and at the price (the "First Refusal Price") and upon the general terms
specified in such notice.
(c) If the First Refusal Right is not exercised with respect
to some or all the shares of the Stock specified in the notice required by
Section 2(a) hereof, then for a period of
120 days, Purchaser (or his personal representative, as the case may be) shall
be free to sell, or otherwise transfer, up to but not exceeding the number of
shares of the Stock specified in the notice required by Section 2(a) hereof,
minus the number of shares of the Stock with respect to which the First Refusal
Right was exercised, at a price and upon general terms no more favorable to
purchasers or transferees thereof than specified in the notice required by
Section 2(a) hereof.
(d) In the event that any shares of the Stock which are free
to be sold or otherwise transferred within said 120-day period, such shares of
the Stock shall again be subject to the First Refusal Right and Purchaser (or
his personal representative, as the case may be) shall comply with all the
provisions of this Section 2 prior to selling or otherwise transferring any such
shares of the Stock.
(e) Failure to exercise the First Refusal Right with respect
to any shares of the Stock shall not constitute a waiver of the First Refusal
Right with respect to any other shares of the Stock.
(f) The First Refusal Right shall continue after the
Purchaser's death or the termination of the Purchaser's association with the
Company for any reason, or no reason, and shall terminate only (1) upon the
closing of an underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended that (i) causes an
"Automatic Conversion Event," as such term is defined in the Company's Restated
Certificate of Incorporation in effect on the date hereof, or otherwise (ii)
results in the conversion of all of the Company's outstanding Preferred Stock
into Common Stock by agreement of the requisite number of holders thereof; or
(2) upon the consolidation, merger or sale of all, or substantially all of the
assets of the Company in which securities of the acquiring company (or any
affiliate of the acquiring company) are issued to the Purchaser in exchange for
the Stock, provided that such securities are issued by a publically held
corporation.
3. The First Refusal Right shall be exercised by written notice
signed by an officer of the Company and delivered or mailed as provided in
Section 14 hereof. The First Refusal Price shall be payable, at the option of
the Company, in cancellation of all or a portion of any outstanding indebtedness
of Purchaser to the Company or in cash (by check) or both.
4. The Company may assign its rights under Section 2 hereof.
5. If, from time to time during the term of the First Refusal
Right:
(a) There is any stock dividend or liquidating dividend of
cash or property, stock split or other change in the character or amount of any
of the outstanding securities of the Company; or
(b) There is any consolidation, merger or sale of all or
substantially all, of the assets of the Company, unless such consolidation,
merger or sale is with a publicly-owned corporation and the aggregate market
value of the securities or other property the stockholders of the Company
receive is in excess of Twenty Million Dollars ($20,000,000), then, in such
event, any and all new, substituted or additional securities or other property
(other than cash) to which Purchaser is entitled by reason of his ownership of
Stock shall be immediately subject to the First
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Refusal Right and be included in the word "Stock" for all purposes of the First
Refusal Right with the same force and effect as the shares of Stock subject to
the First Refusal Right under the terms of Section 2 hereof. Stock acquired as
provided in clauses (a) or (b) above shall be deemed to have been acquired at
the time of acquisition of the Stock on which such Stock was distributed.
6. All certificates representing any shares of Stock subject
to the provisions of this Agreement shall have endorsed thereon the following
legends:
(a) "Any disposition of any interest in the securities
represented by this certificate is subject to restrictions, and the securities
represented by this certificate are subject to a first refusal right contained
in a certain agreement between the record holder hereof and the corporation, a
copy of which will be mailed to any holder of this certificate without charge
after receipt by the corporation of a written request therefor."
(b) Any legend required to be placed thereon by federal or
state securities laws.
7. Purchaser acknowledges that he is aware that the Stock to be
issued to him by the Company pursuant to this Agreement has not been registered
under the Securities Act of 1933, as amended. Purchaser also warrants and
represents to the Company as follows:
(a) Purchaser is purchasing the Stock solely for his own
account for investment and not with a view to or for sale or distribution of the
Stock or any portion thereof and not with any present intention of selling,
offering to sell or otherwise disposing of or distributing the Stock or any
portion thereof. Purchaser also represents that the entire legal and beneficial
interest of the Stock which Purchaser is purchasing is being purchased for, and
will be held for the account of, the Purchaser only and neither in whole nor in
part for any other person.
(b) Purchaser has heretofore discussed the Company and its
plans, operations and financial condition with its officers and the Purchaser
has heretofore received all such information as Purchaser deems necessary and
appropriate to enable Purchaser to evaluate the financial risk inherent in
making an investment in the Stock of the Company and Purchaser further
represents and warrants that Purchaser has received satisfactory and complete
information concerning the business and financial condition of the Company in
response to all inquiries in respect thereof.
(c) Purchaser realizes that his purchase of the Stock will be
a highly speculative investment and that Purchaser is able, without impairing
his financial condition, to hold the Stock for an indefinite period of time and
to suffer a complete loss on his investment.
(d) The Company has disclosed (or hereby does disclose) to
Purchaser in writing:
(i) the sale of the Stock which he is
purchasing has not been registered under
the Securities Act of 1933, as amended
(the "Act"), and the Stock must be held
indefinitely unless a transfer
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is subsequently registered under the Act
or an exemption from such registration is
available;
(ii) the share certificate representing the
Stock will be stamped with the legends
restricting transfer specified in this
Agreement between the Company and the
Purchaser; and
(iii) the Company will make a notation in its
records of the aforementioned
restrictions on transfer and legends.
(e) Purchaser understands that the shares of Stock are
restricted securities within the meaning of Rule 144 promulgated under the Act;
that the exemption from registration under Rule 144 will not be available in any
event for at least one year from the date of sale of the Stock to him, and even
then will not be available unless (i) a public trading market then exists for
the Stock of the Company, (ii) adequate current public information concerning
the Company is then available to the public, (iii) he has been the beneficial
owner and he has paid the full purchase price for the Stock at least one year
prior to the sale, and (iv) other terms and conditions of Rule 144 are complied
with; and that any sale of the Stock may be made by him only in limited amounts
in accordance with such terms and conditions, as amended from time to time.
(f) Without in any way limiting its representations set forth
above, Purchaser further agrees that he shall in no event make any disposition
of all or any portion of the Stock which he is purchasing unless and until:
(i) There is then in effect a Registration
Statement under the Act covering such
proposed disposition and such disposition
is made in accordance with said
Registration Statement: or
(ii) (A) He shall have notified the Company
of the proposed disposition and shall
have furnished the Company with a
detailed statement of circumstances
surrounding the proposed disposition,
(B) he shall have furnished the Company
with an opinion of his own counsel to
the effect that such disposition will
not require registration of such shares
under the Act, and (C) such opinion of
his counsel shall have been concurred in
by counsel for the Company and the
Company shall have advised him of such
concurrence.
8. The Company shall not be required (a) to transfer on its books
any shares of Stock 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.
In the event of a sale of Stock by Purchaser pursuant to Section 2(c) hereof,
Purchaser shall furnish to the Company proof that such sale was made in
compliance with the provisions of Section 2(c) hereof as to price and general
terms of such sale.
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9. Subject to the provisions of this Agreement, Purchaser shall,
during the term of this Agreement, exercise all rights and privileges of a
shareholder of the Company with respect to the Stock.
10. Nothing in this Agreement shall affect in any manner whatsoever
the right or power of the Company, or a parent or subsidiary of the Company, to
terminate Purchaser's provision of services to the Company, for any reason, with
or without cause.
11. If Purchaser makes an election under Section 83(b) of the Code,
he will provide a copy thereof to the Company within thirty days of the filing
of such election with the Internal Revenue Service.
12. Purchaser shall pay to the Company, or make provision
satisfactory to the Committee for payment of, any taxes required by law to be
withheld in respect of the Restricted Stock no later than the date of the event
creating the tax liability. In the Committee's discretion, such tax obligations
may be paid in whole or in part in shares of Common Stock, including the
Restricted Stock, valued at Fair Market Value on the date of delivery. The
Company and its Affiliates may, to the extent permitted by law, deduct any such
tax obligations from any payment of any kind otherwise due to Purchaser.
13. Any determination by the Committee under, or interpretation of
the terms of, this Agreement or the Plan will be final and binding on
Purchaser.
14. Any notice required or permitted hereunder by any party hereto
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 such other party's address hereinafter shown below such other party's
signature or at such other address as such other party may have designated by
ten days' advance written notice to such party.
15. This Agreement shall inure to the benefit of the successors and
assigns of the Company and be binding upon Purchaser and his heirs, executors,
administrators, successors and assigns.
16. This Agreement shall be governed by and interpreted under the
laws of the State of Delaware.
17. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above written.
DYAX CORP.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
President
Address: Xxx Xxxxxxx Xxxxxx
Xxxxxxxx 000
Xxxxxxxxx, XX 00000
PURCHASER:
XXXXXXX X. XXXXXXXX LIVING TRUST
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx, Trustee
Address: 00 Xxxxx Xxxxxxx Xxx
Xxxx Xxxxxxxx, XX 00000