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EXHIBIT 10.16
J AZZ P HARMACEUTICALS ,
I NC .
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
THIS AMENDED AND RESTATED COMMON STOCK PURCHASE AGREEMENT (the "
Agreement ") is made and entered into as of
April 30, 2003 by and between Jazz Pharmaceuticals, Inc., a
California corporation (the " Company "), and Robert
M. Myers (the " Purchaser ").
A. The Company and Purchaser entered into that certain Common
Stock Purchase Agreement, dated March 31, 2003 (the "
Prior Agreement "), pursuant to which Purchaser
purchased 815,000 shares of the Company’s Common Stock.
C. The Company and Purchaser wish to amend and replace the Prior
Agreement with this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
1.1 " Cause " means (a) Purchaser’s
willful misconduct or gross negligence that is materially injurious
to the Company; (b) Purchaser’s conviction or plea of
guilt or nolo contendere to any felony or crime involving moral
turpitude; (c) Purchaser’s commission of any act of
fraud with respect to the Company; or (d) Purchaser’s
willful violation of any federal or state securities law; or
(e) Purchaser’s willful and continued failure
substantially to perform his Services; provided that the action or
conduct described in clause (e) above will constitute "Cause"
only if such failure continues after the Board of Directors has
provided the Purchaser with a written demand for substantial
performance setting forth in detail the specific respects in which
it believes the Purchaser has willfully and not substantially
performed his Services and a reasonable opportunity (to be not less
than 30 days nor more than 90 days) to cure the same.
1.2 " Change of Control " means (a) the sale,
lease, assignment, transfer, conveyance or disposal of all or
substantially all of the assets of the Company, or (b) the
acquisition of this Company by another entity by means of
consolidation, corporate reorganization or merger, or other
transaction or series of related transactions, in each case
excluding (x) any such transaction in which the stockholders
of the Company immediately prior to such transaction own more than
50% of the voting power of acquiror (or parent thereof) in such
transaction immediately after such transaction and (y) any
transaction determined by the Board of Directors in good faith to
be primarily for capital raising purposes.
1.3 " Constructive Termination " means the
Purchaser terminates his Services because of (a) a substantial
diminution in the nature, status or prestige of Purchaser’s
responsibilities, title or reporting level as they exist
immediately prior to a Change of Control or the addition of
responsibilities of a nature, status or prestige inconsistent with
the Purchaser’s responsibilities as they exist prior to a
Change of Control, (b) a substantial diminution in
Purchaser’s compensation or benefits, or (c) the Company
requires the Purchaser to relocate as a condition of his continued
employment by the Company.
1.4 " Repurchase Price " means
$0.0023 per share (as appropriately adjusted for any stock
combination, stock split, stock dividend, recapitalization, or
other similar transaction).
1.5 " Services " means services to be provided by
the Purchaser to the Company as an employee of the Company, a
consultant to the Company, or a member of the Company’s Board
of Directors (or any committee thereof).
1.6 " Unvested Shares " means the Shares held by
the Purchaser that are then subject to the Right of Repurchase.
1.7 " Vested Shares " means the Shares held by the
Purchaser that are not subject to the Right of Repurchase.
2. Right to Repurchase Shares.
2.1 Issuance of Shares. The Company hereby
acknowledges that it sold, and Purchaser purchased, 815,000 shares
of the Company’s Common Stock (the " Shares ")
at a price per share of $0.0023 pursuant to the Prior
Agreement.
2.2 Repurchase Right. Except as provided in
Section 2.3 below, if the Purchaser terminates his Services or
the Company terminates the Purchaser’s Services (each, a "
Termination "), the Company has a right (but not
obligation) to repurchase (the " Right of Repurchase
") all or any portion of the Shares held by the Purchaser for a
price per share equal to the Repurchase Price paid by cash, check,
wire transfer, cancellation of indebtedness or some combination
thereof; provided , however , that the Right of
Repurchase shall expire with respect (a) 14,896 Shares each
month after the date of the Prior Agreement that the Purchaser
serves as an employee or consultant, so that the Company’s
right to repurchase shall have expired with respect to 715,000 of
the Shares four years after the date of the Prior Agreement; and
(b) by 50,000 Shares on the second anniversary of the Prior
Agreement and by an additional 2,084 Shares each month thereafter
that the Purchaser serves as an employee or consultant, so that the
Company’s right to repurchase shall have expired with respect
to 100,000 of the Shares (" Second Tranche Shares ")
four years after the date of the Prior Agreement; provided ,
further , if, in the reasonable judgment of the Board of
Directors of the Company, the Company achieves the Milestone (as
defined hereinafter) prior to the second anniversary of the Prior
Agreement, the number of Second Tranche Shares subject to the
Company’s Right of Repurchase shall immediately be reduced by
a number of shares equal to 2,084 multiplied by the number of
months elapsed between the date of this Agreement and achievement
of the Milestone and by an additional 2,084 shares each month
thereafter that the Purchaser serves as an employee or consultant,
so that the Company’s right to repurchase shall have expired
with respect to all of the Second Tranche Shares four years after
the date of the Prior Agreement. For purposes of this Agreement,
"Milestone" means the completion of a transaction involving a
commitment of at least $1,000,000 by the Company in connection with
the acquisition or licensing of one or more products, programs or
technologies by the Company. The number of Shares with respect to
which the Company’s Right of Repurchase shall expire pursuant
to this Section 2.2 shall be appropriately adjusted for stock
dividends, combinations, splits, recapitalizations and the
like.
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2.3 Acceleration of Lapse of Repurchase
Rights Upon certain Events. Notwithstanding the provisions
of Section 2.2 regarding expiration of the Right of
Repurchase,
(a) if, prior to a Change of Control, the Company terminates the
Purchaser’s Services without Cause or a Constructive
Termination occurs at any time prior to the expiration of the Right
of Repurchase, then one-fourth (1/4th) of the Shares (or the
actual number of Unvested Shares immediately prior to such
termination event, if less) will become Vested Shares immediately
prior to such termination event, and the Company will have no Right
of Repurchase with respect to such Shares;
(b) if, within twelve (12) months following the closing of
a transaction which constitutes a Change of Control, the Company
terminates the Purchaser’s Services without Cause or a
Constructive Termination occurs, then all of the then Unvested
Shares held by the Purchaser will become Vested Shares immediately
prior to such termination event, and the Company will have no Right
of Repurchase with respect to any of the Shares; or
(c) if, more than twelve (12) months following the closing
of a transaction which constitutes a Change of Control, the Company
terminates the Purchaser’s Services without Cause or a
Constructive Termination occurs, then one-fourth (1/4th) of
the Shares (or the actual number of Unvested Shares immediately
prior to such termination event, if less) will become Vested Shares
immediately prior to such termination event, and the Company will
have no Right of Repurchase with respect to such Shares
2.4 Repurchase Procedure. The Company’s
Right of Repurchase shall terminate if not exercised by written
notice from the Company to the Founder within ninety (90) days
after the date of Termination.
3. Transferability; Escrow.
3.1 Restrictions on Transfer. The Purchaser agrees
not to transfer any Shares except as permitted by that certain
Right of First Refusal and Co-Sale Agreement, dated as of
, 2003, by and among the Company and the parties set forth on
Exhibit A and Exhibit B thereto, as it may be amended from time to
time. Notwithstanding the foregoing, except for transfers of
Unvested Shares to the ancestors, descendants or spouse of the
Purchaser, or to trusts for the benefit of such persons or the
Purchaser (provided that the transferee has agree in writing to be
bound by the restrictions on transfers by Purchasers under this
Agreement), the Purchaser may not dispose of or transfer any
Unvested Shares, and any such attempted disposition or transfer
shall be null and void.
3.2 Escrow of Shares. Pursuant to the terms of the
Joint Escrow Instructions in substantially the form attached hereto
as Exhibit A , the Shares issued under this Agreement shall
be held by the Escrow Agent (as defined in such Joint Escrow
Instructions) along with a stock assignment executed by the
Purchaser in blank in the form attached hereto as Exhibit B
.
4. Restrictions on Resale of Shares.
4.1 Legends. The Purchaser understands and
acknowledges that the Shares are not registered under the Act, and
that under the Act and other applicable laws the Purchaser may be
required to hold such Shares for an indefinite period of time. Each
stock certificate representing the Shares shall bear the following
legends:
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"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). ANY TRANSFER OF SUCH SECURITIES SHALL BE INVALID UNLESS A
REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER OR, IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY, SUCH REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO
COMPLY WITH THE ACT.
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS OF
AN AGREEMENT BETWEEN THE COMPANY AND THE HOLDER OF SUCH SECURITIES.
PURSUANT TO THE TERMS OF SUCH AGREEMENT, THE COMPANY HAS A RIGHT TO
REPURCHASE SUCH SECURITIES AND AN IRREVOCABLE PROXY TO VOTE SUCH
SECURITIES UNDER CERTAIN CIRCUMSTANCES. A COPY OF THE AGREEMENT CAN
BE OBTAINED FROM THE SECRETARY OF THE COMPANY."
4.2 Market Standoff. The Purchaser agrees that if
so requested by the Company or any representative of the
underwriters in connection with registration of a public offering
of any securities of the Company under the Act, the Purchaser shall
not sell or otherwise transfer any Shares or other securities of
the Company during the 180 day period following the effective date
of such registration statement. The Company may impose stop
transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such 180 day period.
5. Company Enforcement.
5.1 Stop-Transfer Orders. The Purchaser agrees
that, in order to ensure compliance with the restrictions referred
to herein, the Company may issue appropriate "stop-transfer"
instructions to its transfer agent, if any, and that, if the
Company transfers its own securities, it may make appropriate
notations to the same effect in its own records. The Company shall
not be required to transfer on its books any Shares that have been
sold or otherwise transferred in violation of any of the provisions
of this Agreement, or to treat as owner of such Shares or to accord
the right to vote or pay dividends to any purchaser or other
transferee to whom such Shares shall have been transferred.
6. Representations and Acknowledgments of the
Purchaser. Purchaser hereby represents, warrants,
acknowledges and agrees that:
6.1 Investment. The Purchaser is acquiring the
Shares for the Purchaser’s own account, and not directly or
indirectly for the account of any other person. The Purchaser is
acquiring the Shares for investment and not with a view to
distributio
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