EXHIBIT 10.14
REALLOCATION OF FOUNDER SHARES AGREEMENT
This Reallocation of Founder Shares Agreement dated as of April 10, 2002
(this "Agreement"), is made by and among: Mimeon, Inc., a Delaware corporation
(the "Company"); Xxxxxx Xxxxxxxxxxxx ("Xxxxxxxxxxxx"); Xxx Xxxxxxxxxxxx
("Xxxxxxxxxxxx"); Xxxxxx X. Xxxxxx, Xx. ("Xxxxxx", and together with
Xxxxxxxxxxxx and Xxxxxxxxxxxx, the "Founders"); and Polaris Venture Partners
III, L.P. (the "Investor").
WHEREAS, on June 13, 2001, the Company sold 809,800 shares of the Company's
common stock, $.0001 par value per share ("Common Stock"), to Xxxxxxxxxxxx,
809,800 shares of Common Stock to Xxxxxx and 380,400 shares to Xxxxxxxxxxxx, in
each case at a price of $.0001 per share;
WHEREAS, the shares of Common Stock sold to the Founders are subject to (i)
vesting requirements set forth in Restricted Stock Purchase Agreements dated as
of June 13, 2001, between the Company and each Founder (each, a "Restricted
Stock Purchase Agreement"), and (ii) rights of first refusal and co-sale of the
Company and certain other stockholders as set forth in an Amended and Restated
Right of First Refusal and Co-Sale Agreement dated as of April 11, 2002, among
the Company, the Founders, the Investors and certain other stockholders of the
Company (the "ROFR and Co-Sale Agreement");
WHEREAS, Xxxxxxxxxxxx desires to purchase from each of Xxxxxxxxxxxx and
Xxxxxx, and Xxxxxxxxxxxx and Xxxxxx each desire to sell to Xxxxxxxxxxxx, 40,000
shares of unvested Common Stock;
WHEREAS, the Company and the Investors desire to waive their rights of
first refusal and co-sale with respect to these transfers of Common Stock among
the Founders; and
WHEREAS, the Company desires the shares of Common Stock transferred from
Xxxxxx and Xxxxxxxxxxxx will remain subject to the vesting requirements set
forth in the Restricted Stock Purchase Agreements;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the parties
hereby agree as follows:
1. PURCHASE AND SALE OF SHARES.
(a) Xxxxxxxxxxxx hereby sells to Xxxxxxxxxxxx, and Xxxxxxxxxxxx
hereby purchases from the Xxxxxxxxxxxx, 40,000 shares of Common Stock for a
purchase price per share of $0.0001, and an aggregate purchase price of $4.00.
Xxxxxxxxxxxx acknowledges receipt from Xxxxxxxxxxxx of $4.00 in cash, in full
payment of such purchase price.
(b) Xxxxxx hereby sells to Xxxxxxxxxxxx, and Xxxxxxxxxxxx hereby
purchases from the Xxxxxx, 40,000 shares of Common Stock for a purchase price
per share of $0.0001, and an aggregate purchase price of $4.00. Xxxxxx
acknowledges receipt from Xxxxxxxxxxxx of $4.00 in cash, in full payment of such
purchase price.
(c) The shares of Common Stock that are being transferred to
Xxxxxxxxxxxx hereunder are hereinafter sometimes referred to collectively as the
"Reallocated Shares".
2. VESTING; AMENDMENTS OF RESTRICTED STOCK PURCHASE AGREEMENTS
(a) Section 1 of the Restricted Stock Purchase Agreement between the
Company and Xxxxxxxxxxxx (the "Xxxxxxxxxxxx Original Vesting Agreement") is
hereby amended to delete the definition of "Shares" in Section 1 and to insert
the following in its place:
SHARES: (i) The 380,400 shares of Common Stock issued to
Purchaser hereunder, (ii) the 80,000 shares of Common Stock acquired
by Purchaser from Xxx Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx under the
Reallocation of Founder Shares Agreement dated as of April 10, 2002,
and (iii) any other securities of the Company which may be issued in
exchange for or in respect of such shares of Common Stock, whether by
way of stock split, stock dividend, combination of shares,
reclassification, recapitalization, reorganization or any other means.
(b) Section 1 of the Restricted Stock Purchase Agreement between the
Company and Xxxxxxxxxxxx (the "Xxxxxxxxxxxx Original Vesting Agreement") is
hereby amended to delete the definition of "Shares" in Section 1 and to insert
the following in its place:
SHARES: (i) The 809,800 shares of Common Stock issued to
Purchaser hereunder, minus (ii) the 40,000 shares of Common Stock sold
by Purchaser to Xxxxxx Xxxxxxxxxxxx under the Reallocation of Founder
Shares Agreement dated as of April 10, 2002, plus (iii) any other
securities of the Company which may be issued in exchange for or in
respect of such remaining shares of Common Stock, whether by way of
stock split, stock dividend, combination of shares, reclassification,
recapitalization, reorganization or any other means.
(c) Section 1 of the Restricted Stock Purchase Agreement between the
Company and Xxxxxx (the "Xxxxxx Original Vesting Agreement") is hereby amended
to delete the definition of "Shares" in Section 1 and to insert the following in
its place:
SHARES: (i) The 809,800 shares of Common Stock issued to
Purchaser hereunder, minus (ii) the 40,000 shares of Common Stock sold
by Purchaser to Xxxxxx Xxxxxxxxxxxx under the Reallocation of Founder
Shares Agreement dated as of April 10, 2002, plus (iii) any other
securities of the Company which may be issued in exchange for or in
respect of such remaining shares of Common Stock, whether by way of
stock split, stock dividend, combination of shares, reclassification,
recapitalization, reorganization or any other means.
(d) The Xxxxxxxxxxxx Original Vesting Agreement, the Xxxxxxxxxxxx
Original Vesting Agreement and the Xxxxxx Original Vesting Agreement, each as
amended hereby, are hereby ratified and confirmed in all respects and shall
continue in full force and effect. Each such Original Vesting Agreement shall,
together with this Agreement, be read and construed as a single agreement.
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3. WAIVER OF RIGHTS UNDER ROFR AND CO-SALE AGREEMENT. The parties hereto
hereby approve the transactions contemplated by this Agreement and hereby waive,
on their own behalf and on behalf of all of the parties to the ROFR and Co-Sale
Agreement, any rights of such parties with respect to such transactions,
including any rights to prior written notice, rights of first refusal and rights
of co-sale.
4. REPRESENTATION AND WARRANTIES OF SELLERS. Each of Xxxxxxxxxxxx and
Xxxxxx (each a "Seller" and collectively, the "Sellers"), severally and not
jointly, hereby represent and warrant to Xxxxxxxxxxxx and the Company as
follows:
(a) Such Seller is the sole record and beneficial owner of the
Reallocated Shares that he is transferring to Xxxxxxxxxxxx hereunder, free and
clear of all liens, claims and encumbrances.
(b) This Agreement has been duly executed and delivered by such
Seller; and this Agreement constitutes the legal, valid and binding obligation
of such Seller enforceable against such Seller in accordance with its terms,
subject to bankruptcy, insolvency, moratorium and similar laws affecting the
rights and remedies of creditors generally.
(c) Neither the execution, delivery nor performance of this Agreement
by such Seller will result in the violation of, constitute a default under, or
conflict with, any mortgage, trust agreement, other agreement, instrument,
judgment, decree, order, law, rule or regulation applicable to such Seller.
(d) Such Seller has not offered to sell any of the Reallocated Shares
to, or solicited offers to buy any Reallocated Shares from, any person or entity
other than Xxxxxxxxxxxx.
(e) Such Seller acknowledges that the Company has not given any
investment, tax or other advice to, or, except as expressly set forth herein,
made any representation or warranty to, or agreement with, such Seller to induce
it to enter into this Agreement or otherwise in connection with the transactions
contemplated hereby. Such Seller has consulted with, and relied solely upon, its
own attorney, accountant, and tax or other advisors, as it deemed necessary, in
connection with this Agreement and the transactions contemplated hereby.
5. REPRESENTATIONS OF XXXXXXXXXXXX. Xxxxxxxxxxxx represents to the
Company and the Sellers, as follows:
(a) Xxxxxxxxxxxx understands that the Reallocated Shares are not
registered under the Securities Act of 1933, as amended (the "Act"), or
registered or qualified under the securities or "Blue Sky" laws of any
jurisdiction, and are being sold pursuant to exemptions contained in the Act and
exemptions contained in other applicable securities or "Blue Sky" laws.
Xxxxxxxxxxxx understands further that the Company's reliance on these exemptions
is based in part on the representations made by Xxxxxxxxxxxx in this Agreement.
In this connection, Xxxxxxxxxxxx represents and warrants that the offer and sale
of the Reallocated Shares were made solely in Massachusetts.
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(b) Xxxxxxxxxxxx understands the term "accredited investor" as used
in Regulation D promulgated under the Act and represents and warrants to the
Company that he is an "accredited investor" for purposes of acquiring the
Reallocated Shares. The nature and amount of Venkataraman's investment in the
Reallocated Shares is consistent with Venkataraman's investment objectives,
abilities, and resources. Xxxxxxxxxxxx understands that the Reallocated Shares
are an illiquid investment, which will not become freely transferable by reason
of any "change of circumstances" whatever. Xxxxxxxxxxxx has adequate means of
providing for Venkataraman's current needs and possible contingencies and has no
need for liquidity in Venkataraman's investment.
(c) Xxxxxxxxxxxx is acquiring the Reallocated Shares for
Venkataraman's own account for investment, and not for, with a view to, or in
connection with the resale or distribution thereof. Xxxxxxxxxxxx has no present
intention to sell, hypothecate, distribute or otherwise transfer the Reallocated
Shares or any portion thereof or any interest therein.
(d) Xxxxxxxxxxxx understands that the Reallocated Shares will
constitute "restricted securities" within the meaning of Rule 144 promulgated
under the Act and that, as such, the Shares must be held indefinitely unless
they are subsequently registered under the Act or unless an exemption from the
registration requirements thereof is available. Xxxxxxxxxxxx has been advised
that Rule 144, which permits the resale, subject to various terms and
conditions, of small amounts of such "restricted securities" after they have
been held for one year, does not now apply to the Company, because the Company
is not now required to file, and does not file, current reports under the
Securities Exchange Act of 1934, and because information concerning the Company
substantially equivalent to that which would be available if the Company were
required to file such reports is not now publicly available. The Company may
become a reporting entity at some future date, but no assurance can be given
that it will do so.
(e) In connection with Venkataraman's acquisition of the Reallocated
Shares, Xxxxxxxxxxxx accepts the condition that the Company may maintain "stop
transfer" orders with respect to the Reallocated Shares and that each
certificate or other document evidencing the Reallocated Shares will bear
conspicuous legends in substantially the form set forth in the Xxxxxxxxxxxx
Original Vesting Agreement.
(f) Xxxxxxxxxxxx has consulted Venkataraman's attorney or accountant
with respect to Venkataraman's purchase of the Reallocated Shares. Xxxxxxxxxxxx
has fully investigated the Company and its business and financial condition and
has knowledge of the Company's current activities. Xxxxxxxxxxxx acknowledges
that the Company has granted Xxxxxxxxxxxx and Xxxxxxxxxxxx'x attorney or
accountant access to all information about the Company which they have requested
and has offered each of them access to all further information which they deemed
relevant to an investment decision with respect to the Reallocated Shares.
Xxxxxxxxxxxx and Venkataraman's attorney or accountant have had the opportunity
to ask questions of, and receive answers from, representatives of the Company
concerning such information and the Company's financial condition and prospects.
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6. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the Original Vesting
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof, and supersede all prior agreements, negotiations,
representations and proposals, written or oral, relating to such subject matter.
(b) AMENDMENTS AND WAIVERS. No provision of this Agreement may be
amended or waived except by an agreement in writing executed by all of the
parties hereto.
(c) BINDING EFFECT. All covenants and agreements contained in this
Agreement shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto.
(d) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of The Commonwealth of Massachusetts, without regard to
its principles of conflicts of laws.
(e) PROVISIONS SEVERABLE. In the event that any provision of this
Agreement shall be determined to be invalid, illegal or otherwise unenforceable
by any court of competent jurisdiction, the validity, legality and
enforceability of the other provisions of this Agreement shall not be affected
thereby. Any invalid, illegal or unenforceable provision of this Agreement shall
be severed, and after any such severance, all other provisions hereof shall
remain in full force and effect.
(f) FURTHER ASSURANCES. Each party agrees to sign such other
documents or take such other actions as the other parties may reasonably request
in order to perform the transactions contemplated hereunder.
(g) CONSTRUCTION. A reference to a Section shall mean a Section of
this Agreement unless otherwise expressly stated. The titles and headings herein
are for reference purposes only and shall not in any manner limit the
construction of this Agreement which shall be considered as a whole. The words
"include," "includes" and "including" when used herein shall be deemed in each
case to be followed by the words "without limitation." 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Reallocation of Founder Shares Agreement as of the date first written above.
MIMEON, INC.
By:/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
President and Chief Executive Officer
/s/ Xxxxxx Xxxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxxx
POLARIS VENTURE PARTNERS III, L.P.
By: POLARIS VENTURE MANAGEMENT
CO. III, L.L.C., its General Partner
By: /s/Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Attorney-in-fact
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
/s/ Xxx Xxxxxxxxxxxx
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Xxx Xxxxxxxxxxxx
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS
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