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EXHIBIT 10.1
BIOMATRIX, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
UNDER THE 1997 RESTRICTED STOCK PLAN
This Restricted Stock Purchase Agreement (this "Agreement") is made as
of this ______ day of ____, 199_, between BIOMATRIX, INC., a Delaware
corporation (the "Company"), and ____________ (the "Purchaser").
WHEREAS, the Purchaser is an employee of the Company whose
participation is considered by the Company to be important for its growth; and
WHEREAS, the Company desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Company, __________ (____) shares of the
Company's Common Stock, par value $.0001 per share, all in accordance with the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth, and other good and valuable consideration, receipt of which
is hereby acknowledged, the parties hereto hereby mutually covenant and agree
as follows:
1. Relationship to Plan. This Agreement is entered into
pursuant to the Company's 1997 Restricted Stock Plan (the "Plan"), and is in
all respects, subject to the terms and conditions of the Plan, a copy of which
has been provided to the Purchaser (the receipt of which the Purchaser hereby
acknowledges). The Purchaser hereby acknowledges that his purchase of the
Purchased Shares (as defined in Section 3 below) is subject to all of the terms
and provisions of the Plan. Capitalized terms used and not otherwise defined
in this Agreement shall have the respective meanings ascribed thereto in the
Plan. The Purchaser further agrees that all decisions under and
interpretations of the plan by the Company shall be final, binding and
conclusive upon the Purchaser and his successors, permitted assigns, heirs and
legal representatives.
2. Definitions. For all purposes of this Agreement, the
following definitions shall apply, unless the context otherwise requires:
(a) "Legal Representative" shall mean the executor or executors,
the administrator or administrators, or the other legal representative or
representatives, of the Purchaser or his estate.
(b) "Released Shares" shall mean, at the relevant time of
reference thereto, all of the Shares (other than the then Unreleased Shares).
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(c) "Repurchase Option" shall mean the repurchase option granted
to the Company and its assignees under Section 7 hereof.
(d) "Shares" shall mean, collectively, (i) all of the Purchased
Shares (as defined in Section 3 below) and (ii) any and all other stock or
securities that become subject to the Repurchase Option pursuant to Section
7(c) hereof.
(e) "Unreleased Shares" shall mean, at the relevant time of
reference thereto, that number of the Purchased Shares (subject to adjustment
as provided in Section 7(c) hereof) as shall not have been released from the
Repurchase Option on or prior to such time.
3. Sale of Stock. The Company hereby agrees to sell to the
Purchaser, and the Purchaser hereby agrees to purchase from the Company, an
aggregate of ___________ (_____) shares of the Company's Common Stock (the
"Purchased Shares"), at the price of $______ per share for an aggregate
purchase price of $______.
4. Payment of Purchase Price. The aggregate purchase price for
the Shares shall be paid to the Company by delivery to the Company at the time
of execution of this Agreement a promissory note in favor of the Company, in a
principal amount equal to such aggregate purchase price (the "Note").
Contemporaneously with the execution and delivery to the Company of the Note,
the Purchaser shall execute and deliver to the Company a stock pledge agreement
(the "Stock Pledge Agreement"), pursuant to which the Purchaser agrees to
pledge the Purchased Shares to secure the payment and performance of all of his
obligations under the Note.
5. Issuance of Certificate for the Purchased Shares. Upon
receipt by the Company of the Note, the Company shall issue in the name of the
Purchaser duly executed certificates evidencing the Purchased Shares, which
certificates shall be endorsed with the legend set forth in Section 12(c)
below. Pursuant to the Stock Pledge Agreement, by and between the Company and
the Purchaser, the Secretary of the Company shall hold such certificates until
such time as the Purchased Shares represented thereby become Released Shares
and the pro rata portion of the Note corresponding to such shares has been paid
by the Purchaser.
6. Restriction on Transfer. Except for any transfer of
Unreleased Shares to the Company or its assignees as contemplated by this
Agreement, none of the Unreleased Shares or any beneficial interest therein
shall be sold, transferred, assigned, pledged, encumbered or otherwise disposed
of in any way (including, without limitation, by operation of law) at any time.
None of the
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Released Shares or any beneficial interest therein shall be sold, transferred,
assigned, pledged, encumbered or otherwise disposed of in any way (including,
without limitation, by operation of law), except in accordance with and upon
compliance with all of the provisions of this Agreement. Any sale, transfer,
assignment, pledge, encumbrance or other disposition of the Shares shall be
void unless the provisions of this Agreement are met.
7. Repurchase Option.
(a) In the event of the voluntary or involuntary termination of
the Purchaser's employment or active consultancy with the Company, as the case
may be (or, if the Purchaser shall have two or more of such relationships with
the Company, in the event of the voluntary or involuntary termination of all of
such relationships between the Purchaser and the Company), for any or no reason
(including death or disability) before all of the Purchased Shares have become
Released Shares, the Company shall, upon and from the date of such termination,
as reasonably fixed and determined by the Company (the "Termination Date"),
have an irrevocable, exclusive right, but not the obligation, to repurchase all
or any number of the Unreleased Shares at the original purchase price per share
of $________ (subject to adjustment as provided in Section 7(c) below) plus any
interest that may have accrued under the Note with respect to that portion of
the principal amount under the Note attributable to the purchase price of such
Unreleased Shares. The Company may exercise its right to repurchase at any
time within ninety (90) days after such termination by delivery to the
Purchaser or his Legal Representative of a written notice of exercise (the
"Repurchase Notice") and, at the Company's option, (i) by delivery to the
Purchaser or his Legal Representative, together with such Repurchase Notice, of
a check in the amount of the aggregate purchase price for the Unreleased Shares
being repurchased, or (ii) by cancellation by the Company of an amount of any
indebtedness of the Purchaser to the Company equal to the aggregate purchase
price for the Unreleased Shares being repurchased, or (iii) by a combination of
(i) and (ii) so that the combined payment and cancellation of indebtedness
equals such repurchase price. Any Unreleased Shares not so repurchased shall
no longer be subject to the provisions of this Section 7. Upon delivery of
such Repurchase Notice and the payment of such aggregate purchase price in any
of the ways described above, the Company shall become the legal and beneficial
owner of the Unreleased Shares being repurchased and all rights and interests
therein or relating thereto, and the Company shall have the right to retain and
transfer to its own name the number of Unreleased Shares being repurchased by
the Company. Notwithstanding anything in this Agreement (including, without
limitation, this Section 7(a) or Section 8) expressed or implied to the
contrary, the right to repurchase granted to the Company under this Section
7(a) shall apply to any and all Unreleased Shares that are outstanding on the
Termination Date despite the fact that from
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and after the Termination Date any or all of such Unreleased Shares are, or are
scheduled to be, released from the Repurchase Option by operation of the
provisions of Section 8 hereof.
(b) Whenever the Company shall have the right to repurchase
Unreleased Shares under this Agreement, the Company may designate and assign
one or more employees, officers, or directors of the Company or other persons
or organizations to exercise all or any part of the Company's rights under this
Agreement to repurchase all or any number of such Unreleased Shares.
(c) In the event the shares of Common Stock of the Company shall
be subdivided (whether by stock split, stock dividend or otherwise) or combined
into a greater or smaller number of shares or if, upon a merger, consolidation,
sale of all or substantially all of its assets, reorganization, split-up,
combination, reclassification, recapitalization or the like of the Company, the
shares of the Company's Common Stock shall be exchanged for other securities of
the Company or of another corporation, person or entity, then such number of
shares of Common Stock or such amount of other securities of the Company or
such other corporation, person or entity as were issued in respect of or in
exchange for the Unreleased Shares shall be, thereafter, included as part of
the Unreleased Shares, and the term "Unreleased Shares" shall, thereafter,
include, for all purposes of this Agreement, such number of shares of Common
Stock and/or such amount of other securities of the Company or such other
corporation, person or entity. Immediately upon the occurrence of any of the
events referred to above in this Section 7(c) an appropriate and equitable
adjustment shall be made to the purchase price payable by the Company or its
assignees in connection with the repurchase of any Unreleased Shares pursuant
to this Section 7.
(d) Contemporaneously with the execution and delivery of this
Agreement, the Purchaser agrees to execute and deliver to the Company a stock
power relating to the Purchased Shares and any shares that may become subject
to the Repurchase Option.
8. Release of Purchased Shares From Repurchase Option.
(a) At each date set forth in the table below, the number of the
Purchased Shares equal to the product of (i) the cumulative percentage set
forth next to such date and (ii) the total number of the Purchased Shares
(subject to appropriate adjustment upon the occurrence of any of the events
referred to in Section 7(c) hereof) shall be released from the Repurchase
Option.
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Date Cumulative Percentage
---- ---------------------
-------- ----%
-------- ----%
-------- ----%
-------- ----%
(b) Immediately upon the occurrence of a Change of Control (as
defined below), any and all of the Unreleased Shares shall become Released
Shares. For the purposes of this Section 8(b), the term "Change of Control"
shall mean sale of all or substantially all of the assets of the Company or the
coordinated sale of 50% or more of the Company's issued and outstanding common
stock.
9. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants to the Company,
its officers, directors, agents, and employees as follows:
(i) That he has had an opportunity to ask questions of
and receive answers from the authorized representatives of the Company, and to
review any relevant documents and records concerning the business of the
Company and the terms and conditions of this investment, and that any such
questions have been answered to his full satisfaction.
(ii) That he has such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of an investment in the Company.
(iii) That the Shares are being acquired for his own
account for investment and not with a view toward subdivision, resale, or
redistribution thereof in a manner prohibited under the Securities Act of 1933,
as amended (the "Act"), and he does not presently have any reason to anticipate
any change in his circumstances or other particular occasion or event which
would cause him to sell his Shares. Other than the Stock Pledge Agreement, he
has no contract, undertaking, agreement, understanding, or arrangement with any
person to sell, transfer, or pledge to any person any part or all of the Shares
for which he hereby subscribes, or any interest therein, and has no present
plans to enter into the same.
(iv) That he is an "accredited investor" as defined in
Regulation D of the Act by virtue of his being an executive officer and
director of the Company, if not otherwise.
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(v) That all information which he has provided (or will
provide) concerning himself and his financial position, is correct and
complete as of the date of this Agreement.
(b) The Purchaser acknowledges that the Company and its officers,
directors, employees, and agents are relying on the truth and accuracy of the
representations and warranties set forth in Section 9(a) in connection with the
offering of Shares for sale to the Purchaser without having first registered
the Shares under the Act. All representations, warranties, and covenants
contained in this Agreement shall survive the acceptance of this Agreement and
the sale of the Shares. Notwithstanding the foregoing, however, no
representation, warranty, acknowledgment, or agreement made herein by the
Purchaser shall in any manner be deemed to constitute a waiver of any rights
granted to him under federal or state securities laws.
10. Investment Intent.
(a) The parties agree that none of the Shares or any beneficial
interest therein shall be sold, transferred, assigned, pledged, encumbered or
otherwise disposed of in any way (including, without limitation, by operation
of law) unless and until (i) such Shares or such beneficial interest, as the
case may be, proposed to be sold, transferred, assigned, pledged, encumbered or
otherwise disposed of are registered pursuant to an effective registration
filed with the Securities and Exchange Commission pursuant to the Act or (ii)
if required by the Company, the Company shall have received an opinion, in form
and substance satisfactory to the Company, from the Company's legal counsel to
the effect that the sale, transfer, assignment, pledge, encumbrance or other
disposition of such Shares or such beneficial interest, as the case may be,
does not require registration under the Act or any applicable state securities
laws.
(b) Certificates evidencing the Shares shall be endorsed with a
legend, in addition to any other legends required by this Agreement,
substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE MORTGAGED, PLEDGED HYPOTHECATED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR, IF REQUIRED
BY THE CORPORATION, AN
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OPINION OF COUNSEL FOR THE CORPORATION THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT."
(c) The Purchaser understands and agrees that neither the Company
nor any agent of the Company shall be under any obligation to recognize any
transfer of any of the Shares if, in the opinion of counsel for the Company,
such transfer would result in violation by the Company of any federal or state
law with respect to the offering, issuance or sale of securities.
11. Tax Consequences.
(a) It is understood by the parties hereto that the
issuance and sale of the Shares hereunder may be deemed compensatory in purpose
and in effect and that, as a result, the Company may be obligated to pay
withholding taxes in respect thereof at the time the Purchaser becomes subject
to Federal income taxation with respect to the receipt of the Shares hereunder.
In the event that at the time the above-said withholding tax obligations arise
(i) the Purchaser is no longer in the employ of the Company or is no longer
otherwise providing services to the Company, as the case may be, or (ii) the
Purchaser's other cash compensation from the Company is not sufficient to meet
the aforesaid withholding tax obligation, the Purchaser hereby agrees to
reimburse the Company for all withholding taxes required to be paid in respect
of the issuance and sale of the Shares within thirty (30) days after written
request therefor is made to the Purchaser. Such request shall be made at or
about the time the Company is required to pay such withholding taxes. In the
event the Company determines that it is not obligated to withhold taxes payable
by the Purchaser with respect to the issuance and sale of the Shares but that
it is later held liable due to any non-payment of taxes on the part of the
Purchaser, the Purchaser agrees on his behalf, and on behalf of his heirs,
executors, administrators, legal representatives and assigns, to indemnify the
Company in the amount of any payment made by the Company in respect of such
liability.
(b) The Purchaser hereby agrees to deliver to the Company a signed
copy of any instrument, letter or other document he may execute and file with
the Internal Revenue Service evidencing his election under Section 83(b)(2) of
the Internal Revenue Code of 1986, as amended, to treat his receipt of the
Shares hereunder as includable in his gross income in the year of receipt. The
Purchaser shall deliver a copy of any such instrument of election to the
Company within five (5) days after the date on which any such election is
required to be made in accordance with the appropriate provisions of the
Internal Revenue Code or applicable Regulations thereunder.
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12. General Provisions.
(a) This Agreement shall be governed by the internal substantive
laws of the State of Delaware and shall be binding upon the heirs, personal
representatives, executors, administrators, successors and permitted assigns of
the parties.
(b) This Agreement supersedes all prior written and oral
agreements and understandings between the parties and represents the entire
agreement between the parties with respect to the subject matter hereof and may
only be modified or amended in writing signed by both parties.
(c) In addition to the legend set forth in Section 10(b) of this
Agreement, the certificates representing the Shares shall be endorsed with the
following legend:
"THIS CERTIFICATE AND THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A RESTRICTED STOCK PURCHASE AGREEMENT DATED AS OF
_________, AND TO THE RESTRICTIONS UPON TRANSFER CONTAINED THEREIN. A
COPY OF THE AGREEMENT WILL BE FURNISHED TO ANY INTERESTED PARTY UPON
WRITTEN REQUEST FREE OF CHARGE."
(d) Any notice, demand, request or other communication hereunder
to any party shall be deemed to be sufficient if contained in a written
instrument delivered in person or duly sent by first class registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular, certified or overnight mail, addressed or telecopied, as the
case may be, to such party at the address or telecopier number, as the case may
be, set forth below or such other address or telecopier number, as the case may
be, as may hereafter be designated in writing by the addressee to the addressor
listing all parties:
if to the Corporation, to: with a copy to:
Biomatrix, Inc. Xxxxxx X. Xxxxxxxx, Esq.
00 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxx & Xxxxx LLP
Xxxxxxxxxx, XX 00000 000 Xxxxxxx Xxxxxx
Attention: Xxxxx X. Xxxxxx Xxxxxx, XX 00000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
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if to the Purchaser, to:
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All such notices, request and other communications shall be deemed to
have been received: (i) in the case of personal delivery, on the date of such
delivery; (ii) in the case of mailing, when received by the addressee; and
(iii) in the case of facsimile transmission, when confirmed by facsimile
machine report.
(e) The rights and obligations of each party under this Agreement
shall inure to the benefit of and be binding upon such party's heirs,
successors and permitted assigns. The rights and obligations of the Company
under this Agreement shall be assignable by the Company to any one or more
persons or entities without the consent of the Purchaser. The rights and
obligations of the Purchaser under this Agreement may only be assigned with the
prior written consent of the Company.
(f) Either party's failure to enforce any provision or provisions
of this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent the party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of either party's right
to assert all other legal remedies available to it under the circumstances.
(g) The Purchaser hereby consents to the utilization by the Company,
as necessary in connection with dealings with any governmental and regulatory
authorities, of any information supplied to the Company by the Purchaser or by
his representatives in connection with the offer and sale of the Shares, and
agrees to supply any additional information reasonably requested by any such
authority.
(h) If any provision of this Agreement shall be held illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other severable provisions of this
Agreement.
(i) Headings are for convenience only and are not deemed to be
part of this Agreement.
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(j) The Purchaser agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
(k) This Agreement may be executed in counterparts, all of which
together shall for all purposes constitute one Agreement, binding on each of
the parties hereto notwithstanding that each such party shall not have signed
the same counterpart.
(l) The Company is not by reason of this Agreement or the issuance
of any Shares obligated to continue the Purchaser's employment.
(m) In case of any dispute hereunder, the parties will submit to
the exclusive jurisdiction and venue of any court of competent jurisdiction
sitting in Bergen County, New Jersey, and will comply with all requirements
necessary to give such court jurisdiction over the parties and the controversy.
EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER
PUNITIVE DAMAGES.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
under seal as of the day and year first set forth above.
BIOMATRIX, INC. PURCHASER:
By:
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Xxxxx X. Xxxxxx [____________]
Chief Executive Officer
