CARDIOGENESIS CORPORATION
RESTRICTED STOCK PURCHASE AGREEMENT
UNDER
STOCK OPTION PLAN
THIS RESTRICTED
STOCK PURCHASE AGREEMENT (the “ Agreement ”) is
entered into as of
, 20___ by and between
(hereinafter referred to as “ Purchaser ”), and
Cardiogenesis Corporation, a California corporation (hereinafter
referred to as the “ Company ”), pursuant to the
Company’s Stock Option Plan, as amended from time to time
(the “ Plan ”). Any capitalized term not defined
herein shall have the same meaning ascribed to it in the
Plan.
A.
Purchaser is an Employee or Consultant, and in connection therewith
has rendered services for and on behalf of the Company.
B.
The Company desires to issue shares of Common Stock to Purchaser
for the consideration set forth herein to provide an incentive for
Purchaser to remain an Employee or Consultant of the Company and to
exert added effort towards its growth and success.
NOW, THEREFORE, in
consideration of the mutual covenants hereinafter set forth, and
for other good and valuable consideration, the parties agree as
follows:
1.
Issuance of Shares . The Company hereby sells to
Purchaser, and Purchaser hereby purchases from the Company, an
aggregate of
(
) shares of Common Stock of the Company (the “ Shares
”) on the terms and conditions set forth in this Agreement
and the Plan.
2.
[Consideration . The purchase price (the “Purchase
Price”) for the Shares shall be $
per share, or a total of $
.]
(a) Subject to Section 4(f) below, the Shares acquired
hereunder shall vest and become “ Vested Shares
” as to
percent (___%) of the Shares on the first anniversary of the date
of this Agreement,
percent (___%) of the Shares on the second anniversary of the date
of this Agreement and
percent (___%) of the Shares on the third anniversary of the date
of this Agreement, at which time 100% of the Shares shall be Vested
Shares. Shares which have not yet become vested are herein called
“ Unvested Shares .” No additional shares shall
vest after the date of termination of Purchaser’s Continuous
Status as an Employee or Consultant.
(b) Notwithstanding Section 3(a), the Administrator may
determine that if Purchaser holds Shares at the time of a merger of
the Company with or into another corporation, or the sale of
substantially all of the assets of the Company, the Repurchase
Option shall automatically terminate immediately prior to the
consummation of such transaction, and the Shares subject to the
terminated Repurchase Option shall immediately vest in full, except
to the extent that this Agreement is continued, assumed, or
substituted for by the acquiring or successor entity (or parent
thereof) in connection with such transaction. If the Administrator
does not make such determination, the Shares
will cease
vesting upon the consummation of such transaction (except as
provided for in subsection (c) below) and Purchaser shall not
have any right or title in any Unvested Shares.
(c) However, if in the event of a transaction described in
subsection (b) above, the acquiring or successor entity (or
parent thereof) provides for the continuance or assumption of this
Agreement or the substitution for this Agreement of a new agreement
of comparable value covering shares of a successor corporation
(with appropriate adjustments as to the number and kind of shares
and the purchase price), then the Repurchase Option shall not
terminate, and vesting of the Shares shall not accelerate in
connection with such transaction.
4.
Repurchase Option Upon Termination of Employment
.
(a) Repurchase Option . The Company shall have the
right (but not the obligation) to repurchase (the “
Repurchase Option ”) any or all of the Shares upon the
voluntary or involuntary termination of the Purchaser’s
employment with the Company for any reason (including death or
Disability). Upon exercise of the Repurchase Option, the Purchaser
shall be obligated to sell his or her Shares to the Company, as
provided in this Section 4.
(b) Consideration for Repurchase Option . The
repurchase price of the Shares purchased pursuant to the
Company’s Repurchase Option (the “ Repurchase
Price ”) shall be equal to the Purchase Price paid by the
Purchaser. The Repurchase Price shall be payable, at the option of
the Company, by check or by cancellation of all or a portion of any
outstanding indebtedness of Purchaser to the Company, or by any
combination thereof.
(c) Procedure for Exercise of Repurchase Option . For
ninety (90) days after the date of voluntary or involuntary
termination of the Purchaser’s employment with the Company
for any reason (including death or Disability), the Company may
exercise its Repurchase Option by giving Purchaser and/or any other
person obligated to sell written notice of the number of Shares
which the Company desires to purchase.
(d) Notification and Settlement . In the event that the
Company has elected to exercise the Repurchase Option as to part or
all of the Shares within the period described above, Purchaser or
such other person shall deliver to the Company certificate(s)
representing the Shares to be acquired by the Company within thirty
(30) days following the date of the notice from the Company.
The Company shall deliver to Purchaser against delivery of the
Shares, checks of the Company payable to Purchaser and/or any other
person obligated to transfer the Shares in the aggregate amount of
the Repurchase Price to be paid as set forth in Section 4(b)
above.
(e) Deposit of Unvested Shares . Purchaser shall
deposit with the Company certificates representing the Unvested
Shares, together with a duly executed stock assignment separate
from certificate in blank, which shall be held by the Secretary of
the Company. Purchaser shall be entitled to vote and to receive
dividends and distributions on all such deposited
Shares.
(f) Termination . The provisions of this Section 4
shall automatically terminate and the Shares shall not be subject
to the Repurchase Option (and thus shall become Vested Shares) in
accordance with Section 3(b) above.
(g) Assignment . The Company may assign its Repurchase
Option under this Section 4 without the consent of the
Purchaser.
2
5.
Adjustments Upon Changes in Capital Structure . Subject
to any required action by the shareholders of the Company, in the
event that the outstanding shares of Common Stock of the Company
are hereafter increased or decreased or changed into or exchanged
for a different number or kind of shares or other securities of the
Company by reason of a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock or
any other increase or decrease in the number of issued shares of
Common Stock effected without the receipt of consideration by the
Company; provided, however that conversion of any convertible
securities of the Company shall not be deemed to have been
“effected without receipt of consideration,” then
Purchaser shall be entitled to new or additiona
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