Exhibit 10.12
JAZZ PHARMACEUTICALS,
INC.
COMMON STOCK PURCHASE
AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT
(the “ Agreement ”) is made and entered
into as of October 30, 2003 by and between Jazz
Pharmaceuticals, Inc., a California corporation (the “
Company ”), and Bruce C. Cozadd (the “
Purchaser ”).
A. The Company and Purchaser wish to
complete a transaction pursuant to which the Purchaser will
purchase 660,000 shares of the Company’s Common Stock on the
terms of 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 $0.10 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 sells and will issue to Purchaser, and
Purchaser hereby purchases from the Company, 660,000 shares of the
Company’s Common Stock (the “ Shares
”) at a price per share of $0.10 pursuant to the Prior
Agreement.
2.2 Repurchase Right .
Except as provided in Section 2.2 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 to 1/48th of the
Shares on each monthly anniversary after April 1, 2003 (i.e.,
so that the Right of Repurchase shall have expired with respect to
all of the Shares 48 months following April 1,2003). 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
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2.4 Repurchase
Procedure . The Company’s Right of Repurchase shall
terminate if not exercised by written notice from the Company to
the Purchaser 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 April 30, 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 agreed 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.”
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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 . The Purchaser hereby
represents, warrants, acknowledges and agrees that:
6.1 Investment . The
Purchaser is acquiring the Shares for the Purchaser’s own
account, and no
