GlenRose Instruments Inc. RESTRICTED STOCK PURCHASE AGREEMENT
EXHIBIT
10.12
This Agreement is made on
________________ by and between GlenRose Instruments Inc., a Delaware
corporation having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the “Company”), and _________________, an individual having
an address at ___________________________ (the “Purchaser”).
The Company desires to sell, and
the Purchaser desires to purchase _____________ shares of the Common Stock of
the Company (the “Shares”). The Shares are subject to repurchase by the Company
if the Purchaser ceases to be an employee of, or consultant, or director to the
Company or any parent, subsidiary or affiliate of the Company for any
reason.
NOW THEREFORE, in consideration of the
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto covenant and agree as follows:
1. Definitions. For the
purposes of this Agreement, the following terms shall have the following
respective meanings.
“Act” shall mean the
Securities Act of 1933, as amended from time to time, and the rules and
regulations thereunder.
“Change in Control”
shall mean (a) the acquisition in a transaction or series of transactions by any
person (such term to include anyone deemed a person under Section 13(d)(3) under
the Exchange Act), other than the Company or any of its subsidiaries, or any
employee benefit plan or related trust of the Company or any of its
subsidiaries, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors; provided a Change in
Control shall not occur solely as the result of an Initial Listing or (b) the
sale or other disposition of all or substantially all of the assets of the
Company in one transaction or series of related transactions.
“Common Stock” shall
mean the shares of Common Stock, par value $0.01 per share, of the
Company.
“Company” shall have
the meaning set forth in the preamble to this Agreement.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended from time to time, and the
rules and regulations thereunder.
“Purchaser” shall have
the meaning set forth in the preamble to this Agreement.
“Initial Listing”
shall mean the registration of the Company pursuant to Section 12(b) or (g) of
the Exchange Act together with the registration of the Shares under the Act and
the listing of the Shares for trading on Nasdaq, the Over-the-Counter Bulletin
Board, or on any securities exchange.
“Permitted Transferee”
shall mean any of the following to whom the Purchaser may subsequently transfer
Restricted Shares hereunder: the Purchaser’s spouse, children (natural or
adopted), stepchildren, or a trust, partnership or other entity for the sole
benefit of any of such persons of which the Purchaser is the settlor or the
contributing partner or member or any other affiliate of the
Purchaser.
“Repurchase” shall
have the meaning set forth in Section 6 of this Agreement.
“Restricted Shares”
shall initially mean all of the Shares that are not Vested Shares.
“Shares” shall have
the meaning set forth in the preamble to this Agreement.
“Termination Event”
shall mean the termination of the Purchaser’s status as an employee of, or
consultant, or director to the Company or any parent, subsidiary or affiliate of
the Company for any reason.
“Vested Shares” shall
mean 25% of the Shares on the first anniversary of the grant date, and then an
additional 25% on each of the subsequent three anniversaries, provided that none
of the shares will vest until 90 days after the Company’s Initial Listing. All
of the Shares shall become Vested Shares upon a Change in Control prior to a
Termination Event.
2. Purchase and Sale of the
Shares. The Company hereby sells the Shares to the Purchaser, and the
Purchaser hereby purchases the Shares from the Company, for a purchase price of
$0.01 per share or an aggregate purchase price of _______________ Dollars
($_______) (the “Purchase Price”). The Company hereby acknowledges receipt of
the Purchase Price from the Purchaser. The parties agree to execute and deliver
such further documents as may be necessary to give effect to the purchase and
sale of the Shares.
3. Representations by the
Company. The Company hereby represents and warrants to the Purchaser that
it has the corporate power and authority to sell the Shares to the Purchaser.
Except as set forth in the preceding sentence, the Company makes no
representation or warranty to the Purchaser with respect to either the Shares or
the Company.
4. Representations by the
Purchaser. The
Purchaser hereby represents and warrants to the Company as follows:
(a) The
Purchaser is acquiring the Shares for his or her own account as principal, for
investment purposes only, and not with a view to, or for, resale or distribution
of all or any part of the Shares, and no other person has a direct or indirect
beneficial interest in such Shares.
(b) The
Purchaser acknowledges his or her understanding that the sale of the Shares is
intended to be exempt from registration under the Act, and, in furtherance
thereof, the Purchaser represents and warrants to and agrees with the Company
that the Purchaser has the financial ability to bear the economic risk of his or
her investment in the Shares, has adequate means for providing for his or her
current needs and contingencies and has no need for liquidity with respect to
his or her investment in the Shares.
(c) The
Purchaser is an “accredited investor” as defined in the Act.
5. Acknowledgments by the
Purchaser. The Purchaser acknowledges that:
(a) No
federal or state agency has passed upon the Shares or made any finding or
determination as to the fairness of this investment.
(b) There
is no established market for the Shares and no assurance has been given that any
public market for them will develop.
(c) The
Shares may not be sold, pledged or otherwise transferred, except as may be
permitted under the Act and applicable state securities laws pursuant to
registration or exemption therefrom; and accordingly, the Purchaser may be
required to bear the financial risks of an investment in the Shares for an
indefinite period of time.
6. Repurchase of Restricted
Shares.
(a) Repurchase. Upon the
occurrence of a Termination Event, the Company shall repurchase and the
Purchaser shall resell to the Company (the “Repurchase”) all of
the Restricted Shares (that is, Shares that are not then Vested Shares) held by
the Purchaser as of the date of such Termination Event at the purchase price of
$0.01 per share. The Company shall have the option to not purchase all or any
portion of the Restricted Shares by written notice to the
Purchaser.
(b) Closing Procedure.
The closing of the Repurchase shall be deemed to occur at the close of business
on the date of the Termination Event regardless of when or whether the Purchaser
makes the deliveries required by this subparagraph. The Company is hereby
appointed as the attorney-in-fact of the Purchaser to effect the transfer to the
Company of the Restricted Shares being repurchased. Promptly after the
Termination Event, the Purchaser shall promptly surrender to the Company any
certificates representing the Restricted Shares that were purchased, together
with a duly executed stock power for the transfer of such Restricted Shares to
the Company. Upon the Company’s receipt of the certificates from the
Purchaser, the Company shall mail to the Purchaser a check for the purchase
price of the Restricted Shares being purchased. The Repurchase right specified
herein shall survive and remain in effect as to Restricted Shares following and
notwithstanding any public offering by the Company and certificates representing
such Restricted Shares shall bear legends to such effect.
(c) Remedy. Without
limitation of any other provision of this Agreement or other rights, in the
event that the Purchaser is required to sell the Restricted Shares pursuant to
the provisions of this Section 6 and in the further event that he refuses or for
any reason fails to deliver to the Company the certificate or certificates
evidencing such Restricted Shares together with a related stock power, the
Company may deposit the purchase price for such Restricted Shares with a bank
designated by the Company, or with the Company’s independent public accounting
firm, as agent or trustee, or in escrow, for the Purchaser, to be
held by such bank or accounting firm for the benefit of and for delivery to the
Purchaser promptly after the Purchaser makes the required deliveries
hereunder.
7. Restrictions on Transfer of
Shares. None of the Shares shall be sold, assigned, transferred, pledged,
hypothecated, given away or in any other manner disposed of or encumbered,
whether voluntarily or by operation of law, unless such transfer is in
compliance with all applicable federal and state securities laws and such
disposition is in accordance with the terms and conditions of this Section 7. In
connection with any transfer of Shares, the Company may require the transferor
to provide at the transferor’s own expense an opinion of counsel to the
transferor, satisfactory to the Company that such transfer is in compliance with
all foreign, federal and state securities laws. Any attempted disposition of
Shares not in accordance with the terms and conditions of this Section 7 shall
be null and void, and the Company shall not reflect on its records any change in
record ownership of any Shares as a result of any such disposition, shall
otherwise refuse to recognize any such disposition and shall not in any way give
effect to any such disposition of any Shares. Subject to the foregoing general
provisions, the Purchaser may sell, assign, transfer or give away any or all of
the Shares that are not Restricted Shares only to Permitted Transferees; provided, however, that such
Permitted Transferee(s) shall, as a condition to any such transfer, agree to be
subject to the provisions of this Agreement (including, without limitation, the
provisions of Section 6 and this Section 7) and shall have delivered a written
acknowledgment to that effect to the Company.
8. Legend. Each
certificate(s) representing the Shares shall carry substantially the following
legend:
“The
transferability of this certificate and the shares of stock represented hereby
are subject to the restrictions, terms and conditions (including repurchase and
restrictions against transfers) contained in a certain Restricted Stock Purchase
Agreement between the Company and the holder of this certificate (a copy of
which is available at the offices of the Company for examination).
The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended (the “Act”), or any state securities or “blue sky” laws and
may not be offered, sold, transferred, hypothecated or otherwise assigned except
(1) pursuant to a registration statement with respect to such securities which
is effective under the Act; or (2) pursuant to an available exemption from
registration under the Act relating to the disposition of securities; and (3) in
accordance with applicable state securities and “blue sky” laws.”
9. Miscellaneous
Provisions.
(a) Record Owner;
Dividends. The Purchaser and any Permitted Transferees, during the
duration of this Agreement, shall be considered the record owners of and shall
be entitled to vote the Shares. The Purchaser and any Permitted Transferees
shall be entitled to receive all dividends and any other distributions declared
on the Shares; provided, however, that the
Company is under no duty to declare any such dividends or to make any such
distribution.
(b) Equitable Relief. The
parties hereto agree and declare that legal remedies are inadequate to enforce
the provisions of this Agreement and that equitable relief, including specific
performance and injunctive relief, may be used to enforce the provisions of this
Agreement.
(c) Change and
Modifications. This Agreement may not be orally changed, modified or
terminated, nor shall any oral waiver of any of its terms be effective. This
Agreement may be changed, modified or terminated only by an agreement in writing
signed by the Company and the Purchaser.
(d) Choice of Law.
Notwithstanding the place where this Agreement may be executed by any of the
parties hereto, all the terms and provisions hereof shall be construed in
accordance with and governed by the laws of the Commonwealth of Massachusetts,
excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of this agreement to the substantive law of
another jurisdiction. Any dispute which may arise out of or in connection with
this Agreement shall be adjudicated before a court located in Boston,
Massachusetts and the parties hereby submit to the exclusive jurisdiction of the
courts of the Commonwealth of Massachusetts located in Boston, Massachusetts and
of the federal courts in Boston, Massachusetts with respect to any action or
legal proceeding commenced by any party, and irrevocably waive any objection
they now or hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement or any acts or
omissions relating to the sale and purchase of the Shares, and each of the
Company and the Purchaser (including any Permitted Transferees) consents to the
service of process in any such action or legal proceeding by means of registered
or certified mail, return receipt requested, or by means of a recognized
overnight air courier service in care of the address set forth below or such
other address as each party shall furnish in writing to the other. In the event
any such action is brought, whether at law or in equity, then the prevailing
party shall be paid his, her or its reasonable attorneys’ fees, expenses and
disbursements arising out of such action. The parties hereby waive trial by jury
in any action or proceeding involving, directly or indirectly, any matter
(whether sounding in tort, contract, fraud or otherwise) in any way arising out
of or in connection with this Agreement or the purchase of the
Shares.
(e) Headings. The
headings are intended only for convenience in finding the subject matter and do
not constitute part of the text of this Agreement and shall not be considered in
the interpretation of this Agreement.
(f) Saving Clause. If any
provision(s) of this Agreement shall be determined to be illegal or
unenforceable, such determination shall in no manner affect the legality or
enforceability of any other provision hereof.
(g) Notices. All notices,
requests, consents and other communications shall be in writing and be deemed
given when delivered personally, by facsimile transmission or by a recognized
overnight courier service or when received if mailed by first class registered
or certified mail, postage prepaid. Notices to the Company or the
Purchaser shall be sent to the addresses first set forth above, or to such other
address or addresses as may have been furnished by such party in writing to the
other. Notices to any holder of the Shares other than the Purchaser shall be
addressed to the address furnished by such holder to the Company.
(h) Benefit and Binding
Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors, assigns, and legal
representatives. Without limitation of the foregoing, upon any stock-for-stock
merger in which the Company is not the surviving entity, shares of the Company’s
successor issued in respect of the Shares shall remain subject to terms,
conditions and restrictions set forth herein. The Company has the right to
assign this Agreement, and such assignee shall become entitled to all the rights
of the Company hereunder to the extent of such assignment.
(i) Employment or
Consulting. This Agreement does not confer upon the Purchaser any rights
with respect to continuation of his or her employment or consulting relationship
with the Company, nor shall it interfere with any right of the Company to
terminate such employment or consulting relationship at any time.
(j) Counterparts. For the
convenience of the parties and to facilitate execution, this Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same document.
IN
WITNESS WHEREOF, the Company and the Purchaser have executed this Restricted
Stock Purchase Agreement as of the date first above written.
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By:
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Name:
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Xxxx
X. Xxxxxxxxxxx
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Name:
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Title:
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Chairman
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