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Exhibit 10.7
DYAX CORP.
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (this "Agreement") is made as of
March 30, 1997 (the "Effective Date"), by and between Dyax Corp., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxx ("Purchaser").
The Company desires to issue and sell, and Purchaser desires to purchase,
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. 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, 175,000 shares of the Company's Common Stock,
par value $0.01 per share, for a purchase price of $0.50 per share, payable in
cash at the closing. 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. All of the shares of the Company's Common Stock being purchased by
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) If the Purchaser shall cease to be providing services to the
Company as a consultant, advisor or employee (any such capacity to be deemed to
be "providing services"), then the Company may exercise the Repurchase Right, as
provided in Section 2(b) below, at the purchase price per share set forth in
Section 1 above ("Repurchase Price") with respect to all shares of Stock that
are not vested (the "Unvested Shares"). For the purposes of this Section 2(a),
the shares of Stock purchased pursuant to this Agreement shall vest in
forty-eight (48) substantially equal monthly installments (any fractional shares
to be cumulated and to become exercisable at the end of the earliest succeeding
monthly period in which a whole share equivalent is accumulated) on each monthly
anniversary of the Effective Date. In the event of the Purchaser's death or
permanent disability, all non-vested Stock owned by the Purchaser shall
automatically become vested on the date of the Purchaser's death or permanent
disability. All vested Stock shall be subject to the First Refusal right set
forth in Section 3 hereof.
(b) In the event Purchaser shall cease to be providing services to the
Company (including a parent or subsidiary of the Company, if any), the Company
shall have the right, at any time within sixty (60) days after the date
Purchaser ceases to be so providing services, to exercise the Repurchase Right,
which consists of the right to purchase
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from the Purchaser (or his personal representative, as the case may be) all
non-vested Stock at the Repurchase Price.
(c) If the Purchaser is required to transfer his shares of 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, exercisable at any time
during the period of sixty (60) days after receiving notice thereof, to purchase
all of the shares of Stock which are owned by Purchaser for the Repurchase Price
and upon the terms as set forth in Section 4. Failure of the Company to elect to
purchase Purchaser's shares of Stock under this Section 2 shall not affect the
right to purchase the same shares under Section 3(a) in the event of a proposed
sale, assignment, transfer, exchange, pledge or other disposition by or to any
receiver, petitioner, assignee, transferee or other person obtaining an interest
in said shares.
(d) 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.
3. (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 3(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 3(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 3(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 3(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 3 prior to selling or otherwise transferring any such
shares of the Stock.
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(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 in accordance
with Section 2(b) hereof for any reason, or no reason, and shall terminate only
upon the closing of an underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of shares of Common Stock of the Company to the public at a
public offering price of not less than $9.50 per share (as adjusted for stock
splits, stock dividends, distributions or subdivisions) and resulting in gross
proceeds to the Company of not less than Ten Million Dollars ($10,000,000).
4. The Repurchase Right and 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 Repurchase Price and 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.
5. The Company may assign its rights under Sections 2 and 3 hereof.
6. If, from time to time during the term of the Repurchase Right or 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 Ten Million Dollars ($10,000,000), 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 Repurchase Right or the First Refusal Right, as the
case may be, and be included in the word "Stock" for all purposes of the
Repurchase Right and the First Refusal Right with the same force and effect as
the shares of Stock subject to the Repurchase Right and the First Refusal Right
under the terms of Section 2 and 3 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) above shall be deemed to have
been acquired at the time of acquisition of the Stock on which such Stock was
distributed.
7. All certificates representing any shares of Stock subject to the
provisions of this Agreement shall have endorsed thereon the following legends:
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(a) "Any disposition of any interest in the securities represented by
this certificates is subject to restrictions, and the securities represented by
this certificate are subject to a repurchase right and 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.
8. 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, Purchaser warrants and
represents to the Company as follows:
(a) Purchaser is purchasing the Stock solely for its 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 its purchase of the Stock will be a highly
speculative investment and that Purchaser is able, without impairing its
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 it is purchasing 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;
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(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 two years from the date of sale of the Stock to it, 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) it has been the beneficial owner
and it 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 it 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 it shall in no event make any disposition of all
or any portion of the Stock which it 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) It 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) it shall have furnished the Company with an
opinion of its own counsel to the effect that such
disposition will not require registration of such shares
under the Act, and (C) such opinion of its counsel shall
have been concurred in by counsel for the Company and the
Company shall have advised it of such concurrence.
9. 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 3(c) hereof,
Purchaser shall furnish to the Company proof that such sale was made in
compliance with the provisions of Section 3(c) hereof as to price and general
terms of such sale.
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10. 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.
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. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman of the Compensation Committee
Address: One Xxxxxxx Xxxxxx
Xxxxxxxx 000, 0xx Xxxxx
Xxxxxxxxx, XX 00000
PURCHASER:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, individually
Address: 000 Xxxx Xxx
Xxxxxxxxxx, XX 00000
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