This Purchase and Sale Agreement involves
Title: AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
Governing Law: California Date: 3/9/2007
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.
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:
"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 distribution or resale thereof except in compliance with the Act and any applicable state law regulating securities.
6.2 Access to Information. The Purchaser has had the opportunity to ask questions of, and to receive answers from, appropriate executive officers of the Company with respect to the terms and conditions of the transactions contemplated hereby and with respect to the business, affairs, financial condition and results of operations of the Company. The Purchaser has had access to such financial and other information as is necessary in order for the Purchaser to make a fully informed decision as to investment in the Company, and has had the opportunity to obtain any additional information necessary to verify any of such information to which the Purchaser has had access.
6.3 Pre-Existing Relationship. The Purchaser further represents and warrants that the Purchaser has either (i) a pre-existing relationship with the Company or one or more of its officers or directors consisting of personal or business contacts of a nature and duration which enable the Purchaser to be aware of the character, business acumen and general business and financial circumstances of the Company or the officer or director with whom such relationship exists or (ii) such business or financial expertise as to be able to protect the Purchaser’s own interests in connection with the purchase of the Shares.
6.4 Speculative Investment. The Purchaser’s investment in the Company represented by the Shares is highly speculati