EXECUTION COPY
FOUNDER/EMPLOYEE STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 10th day of October 1996, by and between
ACUTE THERAPEUTICS, INC., a Delaware corporation (the "Company"), and Sage
Partners ("Founder").
WHEREAS, the Founder and several other persons and entities (collectively,
the "Founders") desire to purchase shares of Common Stock of the Company, par
value $0.001 per share, (the "Common Stock") at a price of $0.01 per share;
and
WHEREAS, each Founder has agreed to enter into an agreement substantially
similar to this Agreement (collectively, the "Founder/Employee Purchase
Agreements");
NOW THEREFORE, IT IS HEREBY AGREED:
1. Purchase of Shares. Subject to the terms hereof, the Company hereby
sells to Founder and Founder hereby purchases from the Company 15,000 shares
of the Common Stock (the "Shares") at a price of $0.01 per share ("Purchase
Price"). Following the purchase of Common Stock by the Founder and all other
Founders, the initial outstanding Shares of the Company shall be held in
accordance with Schedule I attached hereto.
2. Payment of Purchase Price. The Founder has paid the Purchase Price
by delivering to the Company at the time of execution of this Agreement a
check for $150.
3. Issuance of Shares. Upon receipt by the Company of the Purchase
Price, the Company shall issue a duly executed certificate evidencing the
Shares in the name of Founder.
4. "Market Stand-Off" Agreement. Founder hereby agrees that, during the
period specified by the Company and the underwriter or underwriters of
common stock (or other securities) of the Company, following the effective date
of a registration statement of the Company filed under the Securities Act of
1933, as amended (the "Act"), Founder shall not, to the extent requested by
the Company and such underwriter, but in any case for a period not to
exceed 180 days, directly or indirectly, sell, offer or contract to sell
(including, without limitation, any short sale), grant any option to purchase
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company at any time during such period
except common stock included in such registration, provided, however, that
(a) such agreement shall be applicable only to the first such registration
statement of the Company which covers common stock (or other securities)
to be
sold on its behalf to the public in an underwritten offering and (b) all
other shareholders of the Company holding securities of the Company enter
into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to securities held by Founder until
the end of such period.
5. Representations and Warranties of Founder.
a. Investment Intent. This Agreement is made with Founder in
reliance upon his or her representation to the Company, which by his or her
acceptance hereof he or she confirms, that the Shares have been acquired with
his or her own funds for investment for an indefinite period for his or her
own account, not as a nominee or agent, and not with a view to the sale or
distribution of any part thereof, and that he or she has no present intention
of selling, granting participation in, or otherwise distributing the same.
By executing this Agreement, Founder further represents that he or she does
not have any contract, undertaking, agreement or arrangement with any person
to sell, transfer, or grant participations, to such person or to any third
person, with respect to any of the Shares.
b. Restricted Securities. Founder understands that the Shares have
not been registered under the Act, on the ground that the sale provided for
in this Agreement is exempt from the registration requirements of the Act,
and that the Company's reliance on such exemption is predicated on his or
her representations set forth herein.
Founder understands that if the Company does not register with the
Securities and Exchange Commission pursuant to sections 12 or 15 of the
Securities Exchange Act of 1934 or if a registration statement covering the
Shares (or a filing pursuant to the exemption from registration under
Regulation A of the Act) under the Act is not in effect when he or she desires
to sell the Shares, he or she may be required to hold the Shares for an
indeterminate period. The Founder also acknowledges that he or she understands
that any sale of the Securities that might be made by him or her in reliance
upon Rule 144 under the Act may be made only in limited amounts in accordance
with the terms and conditions of that rule and that he or she may not be able
to sell the Shares at the time or in the amount he or she so desires. Founder
is familiar with Rule 144 and understands that the Shares constitute
"restricted securities" within the meaning of that Rule.
c. Investment Experience. In connection with the investment
representations made herein Founder represents that he or she is able to fend
for himself or herself in the transactions contemplated by this Agreement,
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of his or her investment, has the
ability to bear the economic risks of his or her investment and has been
furnished with and has had access to such information as he or she has
requested and deems appropriate to his or her investment decision.
2
d. Limitations on Disposition. Founder agrees that in no event will
he or she make a disposition of any of the Shares, unless and until (a) he or
she shall have notified the Company of the proposed disposition and shall
have furnished the Company with a statement of the circumstances surrounding
the proposed disposition, and (b) he or she shall have furnished the Company
with an opinion of counsel reasonably satisfactory to the Company to the
effect that (i) such disposition will not require registration of such Shares
under the Act, or (ii) that appropriate action necessary for compliance with
the Act has been taken, or (c) the Company shall have waived, expressly and in
writing, its rights under clauses (a) and (b) of this subparagraph. In addition,
prior to any disposition of any of the Shares, the Company
may require the transferee or assignee to provide in writing investment
representations and its agreement to the market stand-off provisions hereof in
a form acceptable to the Company.
The Company shall not be required (i) to transfer on its books any Shares
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. Founder
shall, during the term of this Agreement, exercise all rights and privileges
of a shareholder of the Company with respect to the Shares after the issuance,
and prior to the repurchase, thereof. The restrictions on disposition imposed
by this Section 7(d) shall cease and terminate as to the Shares when: (i) such
securities shall have been effectively registered under the Act and sold by
the holder thereof in accordance with such registration, or (ii) an opinion
of the kind described in the second preceding sentence states that all future
transfers of such securities by the holder thereof would be exempt from
registration under the 1933 Act.
This paragraph d. is in addition to any restrictions imposed on the
Escrowed Shares under this Agreement and the Escrow Agreement.
e. Legends. All certificates representing any Shares of the Company
subject to the provisions of this Agreement shall have endorsed thereon the
following legends (except that such certificates shall not be required to
bear such legend after a transfer thereof if the transfer was made in
compliance with Rule 144 or pursuant to a registration statement or, if the
opinion of counsel referred to above is issued and provides that such legend
is not required in order to establish compliance with any provisions of the
1933 Act):
(i) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS AND CONDITIONS OF A CERTAIN EMPLOYEE STOCK PURCHASE AGREEMENT
WHICH INCLUDE RESTRICTIONS RELATING TO A MARKET STAND-OFF AGREEMENT ON THE
SALE OF THE SECURITIES. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE SECRETARY OF THE CORPORATION."
3
(ii) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES UNDER THE SECURITIES ACT OF 1933, OR PURSUANT TO RULE 144 UNDER THE
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT."
(iii) Any legend required to be placed thereon by applicable
state laws.
6. Miscellaneous.
a. Further Instruments and Actions. 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.
b. Notices. 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
or her address hereinafter shown below his or her signature or at such other
address as such party may designate by ten (10) days' advance written notice
to the other party hereto.
c. Governing Law, Assignment and Enforcement. This Agreement is
governed by the internal law of New York and shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon Founder, his or her heirs, executors,
administrators, guardians, successors and assigns. The prevailing party in any
action to enforce this Agreement shall be entitled to attorneys' fees and costs.
The parties agree that damages are not an adequate remedy for Founder's breach
hereof and the Company shall accordingly be entitled to specific performance of
this Agreement.
d. Amendments and Waivers. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous understandings, written or oral. This Agreement may
only be amended with the written consent of the parties hereto, or their
successors or assigns, and no oral waiver or amendment shall be effective under
any circumstances whatsoever.
e. Cooperation. Founder agrees to cooperate affirmatively with the
Company, to the extent reasonably requested by the Company, to enforce rights
and obligations pursuant to this Agreement.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ACUTE THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Ph.D.
Xxxxxx X. Xxxxxxxx, Ph.D.
President
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Founder:
(Signature appears here)
Sage Partners
Address: The Sage Group Inc.
000 Xxxxx 00 Xxxx
Xxxxx 000
Xxxxxxxxxxx, X.X. 00000
