Exhibit 10.63
INTROGEN THERAPEUTICS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase
Agreement (the “ Agreement ”) is made on June
___, 2007 by and among Introgen Therapeutics, Inc., a Delaware
corporation (the “ Company ”), Gendux
Pharmaceuticals, Ltd., an exempted company organized under the laws
of the Cayman Islands, a subsidiary of the Company (the “
Issuer ”), and ___ (the “ Purchaser
”).
WHEREAS, the Company holds 150,000
Ordinary Shares, par value $0.00001 per share, of the Issuer (the
“ Shares ”);
WHEREAS, the Company desires to sell
and the Purchaser desires to buy ___ Shares, subject to the terms
and conditions set forth in this Agreement and the terms and
conditions of the Memorandum of Articles of Association of Issuer
(the “ Articles ”);
WHEREAS, the Board of Directors of
the Company has obtained, reviewed and evaluated (i) a
valuation analysis issued by CRA International, a third party firm
retained by the Company to review the value of Issuer; and
(ii) certain other financial documents and information;
NOW THEREFORE, in consideration of
the mutual covenants and representations set forth below, the
Company, Issuer and Purchaser agree as follows:
1. Purchase and Sale of the
Shares . Subject to the terms and conditions of this Agreement,
the Company agrees to sell to Purchaser and Purchaser agrees to
purchase from the Company at the Closing (as defined below) the
Shares at a price of $0.01 per share (the “ Purchase
Price ”), for an aggregate purchase price of $___. The
Purchase Price may be paid in cash by wire transfer or check,
cancellation of indebtedness, provision of services or any other
method of payment permissible under applicable law and approved by
the Company’s Board of Directors (or any combination of such
methods of payment).
2. Closing . The
purchase and sale of the Shares shall occur at a closing (the
“ Closing ”) to be held on the date first set
forth above, or at any other time mutually agreed upon by the
Company and Purchaser. The Closing will take place at the principal
office of the Company or at such other place as shall be designated
by the Company. At the Closing, Purchaser shall purchase in
exchange for services (and the parties hereto hereby acknowledge
and agree that the value of the services rendered and the promise
to render services over the vesting period set forth in
Section 4 is sufficient consideration for the purchase of the
Shares and is at least equal to the Purchase Price).
3. Repurchase Option
.
A. In
the event the Purchaser ceases to be an employee, consultant,
advisor, officer or director of the Issuer or the Company (a
“ Service Provider ”) for any or no reason,
including, without limitation, by reason of Purchaser’s death
or disability (as defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the “ Code ”),
“ Disability ”), resignation or involuntary
termination, the Company shall, from such time (as determined by
the Company in its discretion), have the right, but not the
obligation (the “ Termination Repurchase Option
”), for a period of 90 days from the date Purchaser
ceases to be a Service Provider as such date is determined by the
Company, to repurchase any Shares which have not yet been released
from the Termination Repurchase Option (the “ Unreleased
Shares ”) at a price per share equal to the lesser of
(x) the fair market value of the shares at the time the
Termination Repurchase Option is exercised, as determined by the
Company’s board of directors and (y) the Purchase Price
(the “ Repurchase
Price ”). The Termination Repurchase Option shall be
exercised by the Company by delivering written notice to the
Purchaser or, in the event of the Purchaser’s death, the
Purchaser’s executor and, at the Company’s option,
(i) by delivering to the Purchaser or the Purchaser’s
executor a check in the amount of the aggregate Repurchase Price,
or (ii) by canceling an amount of the Purchaser’s
indebtedness to the Company equal to the aggregate Repurchase
Price, or (iii) by a combination of (i) and
(ii) such that the combined payment and cancellation of
indebtedness equals the aggregate Repurchase Price. Upon delivery
of such notice and the payment of the aggregate Repurchase Price,
the Company shall (upon entry in the register of the members or the
Issuer) become the legal and beneficial owner of the Unreleased
Shares being repurchased and all rights and interests therein or
relating thereto, and the Company shall have the right to retain
and transfer to its own name the number of Unreleased Shares being
repurchased by the Company. Issuer agrees to transfer into the name
of the Company, any Unreleased Shares being repurchased pursuant to
this section.
B. The
Company in its sole discretion may assign all or part of the
Termination Repurchase Option to one or more employees, officers,
directors or stockholders of the Company or other persons or
organizations.
4. Release of Shares from
Repurchase Option; Vesting .
A. So
long as the Purchaser’s continuous status as a Service
Provider has not yet terminated, each month following the date of
this Agreement, 1/12th of the total number of Shares shall be
released from the Termination Repurchase Option on the
corresponding day of each such month after the date of this
Agreement (or if there is no corresponding day in any such month,
on the last day of such month), until all Shares have been released
as of the first anniversary of this Agreement. Notwithstanding the
foregoing, in the event of a Change of Control (as defined below)
of the Company or the Issuer, 100% of the total number of Shares
that have not been released from the Termination Repurchase Option,
shall be released from the Termination Repurchase Option
immediately prior to the consummation of such Change of Control,
provided that the Purchaser’s continuous status as a
Service Provider has not been terminated prior to such time.
B. For
purposes of this Agreement, a “ Change of Control
” means either:
(1) the
acquisition of the Company or the Issuer, as applicable, by another
entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization,
merger or consolidation or stock transfer, but excluding any such
transaction effected primarily for the purpose of changing the
domicile of the Company or the Issuer, as applicable), unless the
Company’s or the Issuer’s, as applicable, stockholders,
shareholders of record immediately prior to such transaction or
series of related transactions hold, immediately after such
transaction or series of related transactions, at least 50% of the
voting power of the surviving or acquiring entity ( provided
that the sale by the Company or the Issuer, as applicable, of its
securities for the purposes of raising additional funds shall not
constitute a Change of Control hereunder); or
(2) a
sale of all or substantially all of the assets of the Company or
the Issuer, as applicable.
5. Limitation on
Payments . In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to the
Purchaser (i) constitute “parachute payments”
within the meaning of Section 280G of the Code, and
(ii) would be subject to the excise tax imposed by Section
4999 of the Code (the “ Excise Tax ”), then
Purchaser’s benefits under this Agreement shall be
either
A. delivered
in full, or
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B. delivered
as to such lesser extent which would result in no portion of such
benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Purchaser on an after-tax basis, of
the greatest amount of benefits, notwithstanding that all or some
portion of such benefits may be taxable under Section 4999 of
the Code.
Unless the Company and the Purchaser
otherwise agree in writing, any determination required under this
section shall be made in writing by an independent accounting or
consulting firm selected by the Company (the “
Accountants ”), whose determination shall be
conclusive and binding upon the Purchaser, the Issuer and the
Company for all purposes. For purposes of making the calculations
required by this section, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the
application of Section 280G and 4999 of the Code. The Company,
the Issuer and the Purchaser shall furnish to the Accountants such
information and documents as the Accountants may reasonably request
in order to make a determination under this section. The Company
shall bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this
section.
6. Restrictions on
Transfer .
A. The
Purchaser shall not sell, pledge, assign, hypothecate, transfer,
encumber or otherwise dispose of the Shares, or any beneficial
interest therein (“ Transfer ”), other than by
will or by the laws of descent or distribution or a transaction
described in Section 6.G, until (i) such Transfer is
approved in writing by the Issuer’s Board of Directors, or
the compensation committee thereof, prior to such Transfer,
(ii) immediately prior to a Change of Control subject to
Section 9 and only in connection with such Change of Control, or
(iii) the second anniversary of the date that Purchaser ceases
to be a Service Provider.
B. The
Purchaser hereby makes the investment representations listed on
Exhibit A to the Company and the Issuer as of the date
of this Agreement and as of the date of the Closing, and agrees
that such representations are incorporated into this Agreement by
this reference, such that the Company and the Issuer may rely on
them in issuing the Shares. Purchaser understands and agrees that
the Issuer shall cause the legends set forth below, or
substantially equivalent legends, to be placed upon any
certificate(s) evidencing ownership of the Shares, if any, together
with any other legends that may be required by the Company, the
Issuer or by applicable state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE “ ACT ”) AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE
COMPLIES WITH THE ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, A RIGHT OF FIRST REFUSAL, A LOCK-UP
PERIOD IN THE EVENT OF A PUBLIC OFFERING, A VOTING AGREEMENT AND
REPURCHASE OPTIONS HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET
FORTH IN THE RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE ISSUER
AND THE
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ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT
THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS,
RIGHT OF FIRST REFUSAL, VOTING AGREEMENT, LOCK-UP PERIOD AND
REPURCHASE OPTIONS ARE BINDING ON TRANSFEREES OF THESE
SHARES.
C.
Stop-Transfer Notices . Purchaser agrees that to
ensure compliance with the restrictions referred to herein, the
Issuer may issue appropriate “stop transfer”
instructions to its transfer agent, if any, and that, if the Issuer
transfers its own securities, it may make appropriate notations to
the same effect in its own records.
D.
Refusal to Transfer . The Purchaser acknowledges that
the directors of the Issuer shall not (i) transfer on the
books of the Issuer any Shares that have been sold or otherwise
transferred in violation of any of the provisions of this Agreement
or applicable laws, or (ii) 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 so
transferred.
E.
Lock-Up Period . Purchaser hereby agrees that
Purchaser shall not sell, offer, pledge, contract to sell, grant
any option or contract to purchase, purchase any option or contract
to sell, grant any right or warrant to purchase, lend or otherwise
transfer or encumber, directly or indirectly, any Shares or other
securities of the Issuer, nor shall Purchaser enter into any swap,
hedging or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of any
Shares or other securities of the Company, during the period from
the filing of the first registration statement of the Issuer filed
under the Securities Act of 1933, as amended (the “
Securities Act ”) or for the purposes of Directive
2003/71/EC on prospectuses or an admission document for the
purposes of the AIM Rules for Companies published by London Stock
Exchange PLC, by and in relation to the Issuer, that includes
securities to be sold by or on behalf of the Issuer in an
underwritten public offering or institutional placing (an “
Initial Public Offering ”) through the end of the
180-day period following the effective date of such registration
statement or the publication date of any such prospectus or
admission document (or such other period as may be requested by the
Issuer or the underwriters to accommodate regulatory restrictions
on (i) the publication or other distribution of research
reports and (ii) analyst recommendations and opinions).
Purchaser further agrees, if so requested by the Issuer or any
representative of its, sponsors, nominated advisers, brokers or
underwriters, as applicable, to enter into such person’s
standard form of “lockup” or “market
standoff” agreement in a form satisfactory to the Issuer and
such person. The Issuer may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until
the end of any such restriction period.
F.
Unreleased Shares . No Unreleased Shares subject to
the Termination Repurchase Option contained in Section 3 of
this Agreement, nor any beneficial interest in such Shares, shall
be sold, gifted, transferred, encumbered or otherwise disposed of
in any way (whether by operation of law or otherwise) by the
Purchaser, other than as expressly permitted or required by
Section 3.
G.
Exception for Certain Family Transfers .
Notwithstanding anything to the contrary contained elsewhere in
this section, the Purchaser may transfer any or all of the Shares
during the Purchaser’s lifetime or on the Purchaser’s
death by will or intestacy to (i) the Purchaser’s
spouse; (ii) the Purchaser’s lineal descendants or
antecedents, siblings, aunts, uncles, cousins, nieces and nephews
(including adoptive relationships and step relationships), and
their spouses; (iii) the lineal descendants or antecedents,
siblings, cousins, aunts, uncles, nieces and nephews of
Purchaser’s spouse (including adoptive relationships and step
relationships), and their spouses; (iv) a trust or other
similar estate planning vehicle for the benefit of the Purchaser or
any such person; or (v) any charitable or non-profit entity
for charitable purposes; provided that,
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in each
such case, the transferee agrees in writing to receive and hold the
Shares so transferred subject to all of the provisions of this
Agreement, including but not limited to this section, there shall
be no further transfer of such Shares except in accordance with the
terms of this section, such transferee grants to any member of the
Board of Directors of the Issuer an irrevocable proxy referenced in
Section 10, and shall execute a Charge Over Shares referenced
in Section 7; and provided further , that without the
prior written consent of the Company, which may be withheld in the
sole discretion of the Company, no more than three transfers may be
made pursuant to this section, including all transfers by the
Purchaser and all transfers by any transferee.
7. Share Charge . As
security for the faithful performance of this Agreement, Purchaser
agrees to execute and deliver to the Company the Charge Over Shares
in the form of Exhibit B attached to this Agreement as
soon as practicable following the execution of this Agreement.
Purchaser understands that no Shares shall be issued pursuant to
this Agreement until the Company shall have received such executed
Charge Over Shares.
8. Tax Consequences .
The Purchaser has reviewed with the Purchaser’s own tax
advisors the federal, state, local and foreign tax consequences of
this investment and the transactions contemplated by this
Agreement. The Purchaser is relying solely on such advisors and not
on any statements or representations of the Company, the Issuer or
any of their respective agents. The Purchaser understands that the
Purchaser (and not the Company nor the Issuer) shall be responsible
for any tax liability that may arise as a result of the
transactions contemplated by this Agreement. The Purchaser
understands that Section 83 of the Code, taxes as ordinary
income the difference between the purchase price for the Shares and
the fair market value of the Shares as of the date any restrictions
on the Shares lapse. In this context, “restriction”
includes, without limitation the right of the Company to buy back
the Shares pursuant to the Termination Repurchase Option. The
Purchaser understands that the Purchaser may elect to be taxed at
the time the Shares are purchased rather than when and as the
Repurchase Option expires by filing an election under Section 83(b)
of the Code with the IRS within 30 days from the date of
purchase. THE FORM FOR MAKING THIS SECTION 83(B) ELECTION IS
ATTACHED TO THIS AGREEMENT AS EXHIBIT D AND
THE PURCHASER (AND NOT THE COMPANY, THE ISSUER NOR ANY OF THEIR
RESPECTIVE AGENTS) SHALL BE SOLELY RESPONSIBLE FOR APPROPRIATELY
FILING SUCH FORM, EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS
AGENTS TO MAKE THIS FILING ON PURCHASER’S BEHALF.
9. Drag-Along
Obligations .
A. In
the event the Issuer’s Board of Directors approves a Change
of Control of the Issuer, the Board of Directors of the Issuer
shall give notice (the “ Corporate Transaction Notice
”) to Purchaser (together with their transferees, successors
and assigns) stating that the Board of Directors of the Issuer has
approved such Change of Control. The Corporate Transaction Notice
also shall set forth the name and address of the person or entity
proposing to buy the Issuer, its assets or its capital stock (the
“ Acquisition Offeror ”) and shall summarize the
basic terms of the proposed Change of Control. Any Corporate
Transaction Notice may be rescinded by the Board of Directors of
the Issuer by delivering written notice thereof to the
Purchaser.
B. As
soon as practicable after receipt of the Corporate Transaction
Notice, the Purchaser shall take all lawful action reasonably
necessary and requested by the Issuer to complete the Change of
Control, including without limitation (A) the voting of all
Shares of the Issuer held by the Purchaser in favor of the Change
of Control of the Issuer and the waiver of any dissenter’s or
appraisal rights or other rights granted to minority shareholders)
under applicable law in connection with the Change of Control of
the Issuer, (B) if so requested, the surrender to the
Acquisition Offeror of certificates, if any,
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representing all Shares and all instruments, if any, representing
convertible securities of the Issuer held by the Purchaser,
properly endorsed for transfer to the Acquisition Offeror against
payment of the sale price for such Shares or such convertible
securities in the Change of Control of the Issuer, and (C) the
execution of all sale, liquidation and other agreements in the form
reasonably requested (containing, among other things, reasonable
and customary representations and warranties relating to the valid
title to such Shares free and clear of any liens, claims,
encumbrances and restrictions of any kind (other than those arising
hereunder) and such Purchaser’s power, authority, and right
to enter into and consummate such purchase or merger agreement
without violating any other agreement, which representations and
warranties shall be substantially similar in all material respects
to the representations and warranties made by other shareholders)
of the Issuer that hold an equal or greater percentage of the
Issuer’s Shares. Each such Purchaser hereby agrees, after
having received a Corporate Transaction Notice, not to exercise any
dissenter’s or appraisal rights or other rights granted to
minority shareholders) under applicable law in connection with the
Change of Control of the Issuer.
C. The
obligations of the Purchaser pursuant to this Section 9 are
subject to the satisfaction of the following conditions:
(1) Upon
the consummation of the Change of Control of the Issuer, the
Purchaser shall be entitled to receive the same proportion, if any,
of the aggregate consideration from such Change of Control that the
Purchaser would have received if such aggregate consideration had
been distributed by the Issuer to the shareholders of the Issuer in
complete liquidation pursuant to the rights and preferences set
forth in the Articles as in effect immediately prior to such Change
of Control (giving effect to applicable orders of priority and the
exercise price of all warrants and options);
(2) If
any shareholder of the Issuer is given an option as to the form of
consideration to be received by such shareholder of the Issuer, all
holders of such class or classes will be given the same
option;
(3) Purchaser
shall not be obligated to make any out-of-pocket expenditure prior
to the consummation of the Change of Control of the Issuer or to
pay more than his pro rata share (based on the amount of
consideration received) of reasonable expenses incurred for the
benefit of all shareholders and are not otherwise paid by the
Issuer or the acquiring party (costs incurred by or on behalf of
Purchaser for his sole benefit will not be considered costs of the
transaction hereunder); provided, that Purchaser’s
liability for such expenses shall be capped at the aggregate
consideration received by such Purchaser for his Shares of the
Issuer; provided, further that Purchaser shall not be
responsible for any such expenses unless all shareholders are
similarly responsible for their pro rata portion of such expenses;
and
(4) The
Purchaser shall be required to provide representations or
indemnities in connection with the Change of Control of the Issuer
only concerning Purchaser’s valid ownership of his Shares of
the Issuer, free and clear of all liens and encumbrances other than
those arising under applicable securities laws, and each such
Purchaser’s power, authority, and right to enter into and
consummate such purchase or merger agreement without violating any
other agreement and then in each case, Purchaser shall not be
liable for more than his pro rata share (based upon the amount of
consideration received) of any liability for misrepresentation or
indemnity and such liability shall not exceed the total purchase
price received by Purchaser for his Shares of the Issuer.
D.
Termination of Drag Along Obligations . This
Section 9 shall terminate as to all Shares purchased hereunder
upon the closing of a Change of Control of the Company or the
Issuer or an Initial Public Offering of the Issuer.
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10. Grant of Proxy. To
ensure the performance of Purchaser with the agreements set forth
herein, and in further consideration of and as a condition to this
sale to Purchaser, the Purchaser agrees to execute and deliver to
the Company the Irrevocable Proxy in the form of
Exhibit C attached to this Agreement as soon as
practicable following the execution of this Agreement. Purchaser
understands that no Shares shall be issued pursuant to this
Agreement until the Company shall have received such executed
Irrevocable Proxy.
11. General Provisions
.
A.
Choice of Law . This Agreement shall be governed by
the internal substantive laws, but not the choice of law rules, of
Texas.
B.
Integration . This Agreement, including all exhibits
hereto, represents the entire agreement between the parties with
respect to the purchase of the Shares by the Purchaser and
supersedes and replaces any and all prior written or oral
agreements regarding the subject matter of this Agreement
including, but not limited to, any representations made during any
interviews, relocation discussions or negotiations whether written
or oral.
C.
Notices . Any notice, demand, offer, request or other
communication required or permitted to be given by either the
Company, the Issuer or the Purchaser pursuant to the terms of this
Agreement shall be in writing and shall be deemed effectively given
the earlier of (i) when received, (ii) when delivered
personally, (iii) one business day after being delivered by
facsimile (with receipt of appropriate confirmation), (iv) one
business day after being deposited with an overnight courier
service or (v) four days after being deposited in the U.S.
mail, First Class with postage prepaid and return receipt
requested, and addressed to the parties at the addresses provided
to the Company (which the Company agrees to disclose to the other
parties upon request) or such other address as a party may request
by notifying the other in writing.
D.
Successors . Any successor to the Company or the
Issuer (whether direct or indirect and whether by purchase, merger,
consolidation, liquidation or otherwise) to all or substantially
all of the Company’s or the Issuer’s, as applicable,
business and/or assets shall assume the obligations under this
Agreement and agree expressly to perform the obligations under this
Agreement in the same manner and to the same extent as the Company
or the Issuer, as applicable, would be required to perform such
obligations in the absence of a succession. For all purposes under
this Agreement, the term “Company” or
“Issuer” shall include any successor to such
entity’s business and/or assets which executes and delivers
the assumption agreement described in this section or which becomes
bound by the terms of this Agreement by operation of law. Subject
to the restrictions on transfer set forth in this Agreement, this
Agreement shall be binding upon Purchaser and his or her heirs,
executors, administrators, successors and assigns.
E.
Assignment; Transfers. Except as set forth in this
Agreement, this Agreement, and any and all rights, duties and
obligations hereunder, shall not be assigned, transferred,
delegated or sublicensed by the Purchaser without the prior written
consent of the Company.
F.
Waiver . Either party’s failure to enfo
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