SECOND AMENDMENT TO EXERCISE NOTICE AND RESTRICTED STOCK PURCHASE AGREEMENTS
Exhibit
10.49
SECOND AMENDMENT TO EXERCISE NOTICE AND RESTRICTED STOCK PURCHASE AGREEMENTS
This Second Amendment to Exercise Notice and Restricted Stock Purchase Agreements (this
“Agreement”) is made as of July 28, 2009 by and between Omeros Corporation, a Washington
corporation (the “Company”), and Xxxxxxx X. Xxxxx (the “Purchaser”).
RECITALS
A. The Company and the Purchaser are parties to the Exercise Notice and Restricted Stock
Purchase Agreements dated as of June 5, 2007 and June 29, 2007, as amended by the Amendment to
Exercise Notice and Restricted Stock Purchase Agreements dated April 29, 2009 (each, a “Purchase
Agreement” and together, the “Purchase Agreements”), pursuant to which Purchaser early exercised a
stock option for the purchase of a total of 150,000 shares of the Company’s Common Stock.
B. Pursuant to Sections 3(a)(i) and (ii) of each Purchase Agreement, the Company has the
right, but not the obligation, within 180 days of the end of Purchaser’s employment with the
Company, to repurchase any shares of Common Stock that the Purchaser purchased pursuant to each
Purchase Agreement that he was not vested in as of the date his employment ended (the “Repurchase
Right”).
C. Purchaser’s employment with the Company ended on January 29, 2009 and, pursuant to the
terms of the Purchase Agreements, the Company will be deemed to have automatically exercised the
Repurchase Right with respect to any unvested shares on the 180th day following his termination
unless the Company gives Purchaser prior notice that it does not intend to repurchase the unvested
shares.
D. As of the end of Purchaser’s employment with the Company, Purchaser had not vested in
45,834 of the 150,000 shares that he had purchased.
D. The Company and Purchaser desire to extend the Repurchase Right an additional seven days to
allow the Company and the Purchaser to continue discussions related to Purchaser’s employment at
the Company.
AGREEMENT
In consideration of the foregoing, the Company and the Purchaser agree to amend each Purchase
Agreement as follows:
1. Sections 3(a)(i) and (ii) of each Purchase Agreement shall be amended and restated in its
entirety as follows (with changes highlighted in bold and italics)
“(a) Repurchase Option.
(i) In the event of the voluntary or involuntary termination of Purchaser’s employment or
consulting relationship with the Company for any reason (including death or disability), with or
without cause, the Company shall upon the date of such termination (the “Termination Date”)
have an irrevocable, exclusive option (the “Repurchase Option”) for a period of 187 days
from such date to repurchase all or any portion of the Shares held by Purchaser as of the
Termination Date which have not yet been released from the Company’s Repurchase Option at the
original purchase price per Share specified in Section 1 (adjusted for any stock splits, stock
dividends and the like). The Company has the right, but not the obligation, to exercise the
Repurchase Option.
(ii) Unless the Company notifies Purchaser in writing within 187 days from the date of
termination of Purchaser’s employment or consulting relationship that it does not intend to
exercise its Repurchase Option with respect to some or all of the Shares, the Repurchase Option
shall be deemed automatically exercised by the Company as of the 187th day following such
termination, provided that the Company may notify Purchaser that it is exercising its Repurchase
Option as of a date prior to such 187th day. Unless Purchaser is otherwise notified by the Company
pursuant to the preceding sentence that the Company does not intend to exercise its Repurchase
Option as to some or all of the Shares to which it applies at the time of termination, execution of
this Agreement by Purchaser constitutes written notice to Purchaser of the Company’s intention to
exercise its Repurchase Option with respect to all Shares to which such Repurchase Option applies.
The Company, at its choice, may satisfy its payment obligation to Purchaser with respect to
exercise of the Repurchase Option by either (A) delivering a check to Purchaser in the amount of
the purchase price for the Shares being repurchased, or (B) in the event Purchaser is indebted to
the Company, canceling an amount of such indebtedness equal to the purchase price for the Shares
being repurchased, or (C) by a combination of (A) and (B) so that the combined payment and
cancellation of indebtedness equals such purchase price. In the event of any deemed automatic
exercise of the Repurchase Option pursuant to this Section 3(a)(ii) in which Purchaser is indebted
to the Company, such indebtedness equal to the purchase price of the Shares being repurchased shall
be deemed automatically canceled as of the 187th day following termination of Purchaser’s
employment or consulting relationship unless the Company otherwise satisfies its payment
obligations. As a result of any repurchase of Shares pursuant to this Section 3(a), the Company
shall become the legal and beneficial owner of the Shares being repurchased and shall have all
rights and interest therein or related thereto, and the Company shall have the right to transfer to
its own name the number of Shares being repurchased by the Company, without further action by
Purchaser.”
2. All other terms of the Purchase Agreements remain unchanged and in force.
3. This Agreement and all acts and transactions pursuant hereto and the rights and obligations
of the parties hereto shall be governed, construed and interpreted in accordance with the laws of
the State of Washington, without giving effect to principles of conflicts of law.
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4. This Agreement may be executed in counterparts, each of which shall be deemed an original,
and all of which, taken together, shall constitute one and the same agreement. This Agreement
shall be effective upon full execution by facsimile or original, and a facsimile signature shall be
deemed to be and shall be as effective as an original signature.
The parties have executed this Second Amendment to Exercise Notice and Restricted Stock Purchase
Agreements as of the date first set forth above.
| OMEROS CORPORATION |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxxx, M.D. | ||||
| Chairman & CEO | ||||
| PURCHASER: |
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| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
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