Exhibit 10.36
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of the ____ day of ________________, 199_, by
and between Metasyn, Inc., a Delaware corporation (the "Company"), and [name of
purchaser] (the "Purchaser").
WHEREAS, the Company has agreed to sell to the Purchaser and the
Purchaser has agreed to purchase from the Company shares of the Company's Common
Stock, $.01 par value (the "Common Stock"); and
WHEREAS, the Company desires to issue and the Purchaser desires to
acquire the Common Stock on the terms and conditions hereinafter set forth, and
it is agreed between the parties as follows:
1. The Company agrees to issue to the Purchaser ______ shares of the
Common Stock (the "Shares") subject to the Purchaser's payment of $____ per
share for the Shares and execution and delivery of this Agreement. The
consummation of this transaction shall occur at such time and place as the
parties may mutually agree.
2. All of the Shares being acquired by the Purchaser pursuant to this
Agreement (hereinafter sometimes collectively referred to as the "Stock") shall
be subject to the repurchase right ("Repurchase Right") set forth in this
Section 2.
(a) For the purposes of this Agreement, the Stock
purchased pursuant hereto shall be deemed vested as follows:
For Services Rendered: Percentage of Shares
Vested:
On or after _______________ but 20%
before ___________________
[year 1]
On or after _______________ remaining 80% of Shares shall vest
and until _________________ at the rate of 1/48th per month.
[year 5]
(b) Upon the termination of the Employee's employment for any
reason, with or without cause, the Company may exercise the Repurchase Right at
the same purchase price per share paid by the Purchaser and set forth in Section
1 above (the "Repurchase Price") with respect to all unvested stock.
(c) If the Purchaser:
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(i) files a voluntary petition under any bankruptcy
or insolvency law or a petition for the appointment of a receiver or makes an
assignment for the benefit of creditors;
(ii) is subjected involuntarily to such a petition or
assignment or to an attachment or other legal or equitable interest with respect
to his Stock and such involuntary petition or assignment or attachment is not
discharged within 60 days after its date; or
(iii) is required to transfer his Stock by operation
of law (other than death of the Purchaser) or by order or decree of any court;
then the Company shall have the option (in addition to the Repurchase Right set
forth in clause (b) above), exercisable at any time during the period of sixty
(60) days after receiving notice thereof, to purchase all of the vested Shares
of Stock which are owned by the Purchaser for the fair market value of the
Shares, as determined by the Board of Directors of the Company.
(d) Nothing in this Agreement shall affect in any manner
whatsoever the right or power of the Company to terminate the Purchaser's
association with the Company.
3. The Repurchase Right shall be exercised by written notice signed by
an officer of the Company and delivered or mailed as provided in Section 11
hereof. The Repurchase Price shall be payable, at the option of the Company, in
cancellation of all or a portion of any outstanding indebtedness of the
Purchaser to the Company or in cash (by check) or both.
4. If, from time to time during the term of the Repurchase 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, then, in such event, any and
all new, substituted or additional securities or other property (other than
cash) to which the Purchaser is entitled by reason of his ownership of Stock
shall be immediately subject to the Repurchase Right and be included in the word
"Stock" for all purposes of the Repurchase Right with the same force and effect
as the shares of Stock subject to the Repurchase Right under the terms of
Section 2 hereof. While the total Repurchase Price shall remain the same after
each such event, the Repurchase Price per share of Stock upon exercise of the
Repurchase Right shall be appropriately adjusted. Stock acquired as provided in
clauses (a) or (b) shall be deemed to have been acquired at the time of
acquisition of the Stock on which such Stock was distributed.
5. Rights of First Refusal.
(a) The Purchaser agrees that he shall not sell, transfer,
pledge, hypothecate, or otherwise dispose of (collectively, "transfer") any
unvested Shares at any time, and shall not transfer any vested Shares, whether
now owned or hereafter acquired by
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him, except for "Permitted Transfers" (as defined in clause (f) below) or
pursuant to this Section 5.
(b) If the Purchaser wishes to transfer vested Shares, other
than as a Permitted Transfer, he shall deliver a written notice (the "Sale
Notice") to the Company, and the Company shall in turn forward a copy of such
notice to the holders of the Company's Series B Convertible Preferred Stock
("Series B Stock") identified on Exhibit 1 hereto (the "Series B Stockholders").
The Sale Notice shall set forth the identity of the proposed transferee and the
terms and conditions of the proposed transfer.
For 15 days following its receipt of the Sale Notice, the
Company shall have the option to purchase all, but not less than all, of the
vested Shares to be transferred (the "Offered Shares") at the price and upon the
terms set forth in the Sale Notice. The Company shall give written notice of its
decision whether or not to purchase the Offered Shares to the Purchaser (the
"Company Notice") within such 15-day period, and the settlement of any sale of
such Offered Shares to the Company shall be made as provided below in clause
(d). The Company shall simultaneously deliver a copy of the Company Notice to
the Series B Stockholder.
(c) If the Company elects not to purchase the Offered Shares,
the Series B Stockholders shall have the option, for 15 days following their
receipt of the Company Notice indicating the Company's election not to purchase
the Offered Shares, to purchase all, but not less than all, of the Offered
Shares at the price and upon the terms set forth in the Sale Notice. In the
event the Series B Stockholders elect to purchase the remaining Offered Shares,
they shall give written notice of their election to the Purchaser within such
15-day period (the "Series B Stockholder Notice"), and the settlement of the
sale of such Offered Shares shall be made as provided below in clause (d).
Each Series B Stockholder shall have the right to purchase its
pro rata share of the Offered Shares, which pro rata share represents the ratio
of shares of Series B Stock held by the Series B Stockholder to the total number
of shares of Series B Stock issued and outstanding. If any Series B Stockholder
declines to purchase any of the Offered Shares, the pro rata share of the Series
B Stockholders intending to purchase the Offered Shares shall be determined
after subtracting the pro rata share of the nonparticipating Series B
Stockholder(s) from the total number of shares of Series B Stock.
(d) The closing of the purchase and sale of the Offered Shares
shall take place on a date agreed upon by the Purchaser and the Company and/or
the Series B Stockholders, but in any event within 60 days following the latter
of the date of the Sale Notice or the Company Notice, at the principal office of
the Company.
(e) If neither the Company nor the Series B Stockholders
elects to purchase all of the Offered Shares, the Purchaser may transfer the
Offered Shares at a price and on terms no more favorable to the transferee than
those specified in the Sale Notice, during the 120-day period immediately
following the date of the Sale Notice. Any Offered Shares not sold or
transferred during such 120-day period will again be subject to the provisions
of this Section 5.
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(f) For purposes of this Section 5, a "Permitted Transfer"
shall mean a transfer of Shares to or for the benefit of any spouse, child,
grandchild, parent or sibling, niece or nephew, or to a trust for their benefit
if, following such transfer, voting control over such shares is retained by the
transferor; provided that such transferred Shares shall remain subject to this
Section 5 and such permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such transferees
shall be bound by all of the terms and conditions of this Section 5.
(g) The rights of the Company and the Series B Stockholders
set forth in this Section 5 shall terminate and be of no further force and
effect upon the Company's initial registered public offering of shares of equity
securities.
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 repurchase right and a right of
first refusal 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 within 5 days of receipt by the corporation of a
written request therefor."
(b) Any legend required to be placed thereon by federal
or state securities laws.
7. The 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. In this connection, the Purchaser
warrants and represents to the Company as follows:
(a) The Purchaser is acquiring 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. The Purchaser also represents that the entire legal and
beneficial interest of the Stock which the Purchaser is acquiring is being
acquired for, and will be held for the account of, the Purchaser only and
neither in whole nor in part for any other person.
(b) The 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 the Purchaser deems necessary
and appropriate to enable him to evaluate the financial risk inherent in making
an investment in the Stock of the Company, and the Purchaser further represents
and warrants that he has received satisfactory and complete information
concerning the business and financial condition of the Company in response to
all inquiries in respect thereof.
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(c) The Purchaser realizes that his acquisition of the Stock
will be a highly speculative investment and that the 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 the
Purchaser in writing:
(i) the sale of the Stock which he is
acquiring has not been registered under
the Securities Act of 1933, as amended
(the "Act"), and the Securities must be
held indefinitely unless a transfer of
them 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) The 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 two years 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 two years
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, the Purchaser further agrees that he shall in no event make any
disposition of all or any portion of the Stock which he is acquiring 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
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by counsel for the Company and the Company shall have advised it 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.
9. Subject to the provisions of this Agreement, the 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. 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.
11. 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 address
hereinafter shown below his signature or at such other address as such party may
designate by ten days' advance written notice to the other party hereto.
12. This Agreement shall inure to the benefit of the successors and
assigns of the Company and be binding upon the Purchaser and his heirs,
executors, administrators, successors and assigns.
13. This Agreement shall be governed by and interpreted under the laws
of the Commonwealth of Massachusetts.
14. 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.
METASYN, INC.
By:______________________________
Title:___________________________
PURCHASER
-----------------------------------
Address: _______________________
-----------------------
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Exhibit 1
Holders of Series B Convertible Preferred Stock
Accel IV L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Investors '93 L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Accel Keiretsu L.P.
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx Partners
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Prosper Partners
c/o Accel Partners
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Bessemer Venture Partners III L.P.
00 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
G. Xxxxx Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxxxx Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Gabrieli Family Foundation
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxxx X. Xxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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Xxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxx X. Xxxxx, Xx.
c/o Xxxxxx X. Xxxxxxxx
Bessemer Securities Corp.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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