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Exhibit
10.11
RESTRICTED STOCK PURCHASE
AGREEMENT
THIS RESTRICTED STOCK
PURCHASE AGREEMENT (this “ Agreement ”) is
entered into as of the 1 st day
of December 2005, by and between Aegerion Pharmaceuticals, Inc., a
Delaware corporation (the “ Corporation ”), and
William J. Sasiela (the “ Equity Participant
”).
WITNESSETH:
WHEREAS, the Corporation
desires to issue to the Equity Participant, and the Equity
Participant desires to purchase from the Corporation, shares of the
Corporation’s Common Stock, $0.001 par value per share (the
“Common Stock”).
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree as
follows:
SECTION 1. Definitions
.
As used in this Agreement,
the following terms shall have the following respective
meanings:
“ Cause ”
shall have the meaning set forth in the Employment
Agreement.
“ Code ”
shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
“ Commission
” shall mean the Securities and Exchange Commission or any
other Federal agency administering the Securities Act at the
applicable time.
“ Consideration
” shall have the meaning set forth in Section 2.1
.
“ Employment
Agreement ” shall mean the Employment Agreement proposed
to be entered into by and between the Corporation and the Equity
Participant pursuant to which the Equity Participant will be
employed as the full-time Senior Vice President Clinical
Development and Chief Medical Officer of the
Corporation.
“ Equity Stock
” shall have the meaning set forth in Rule 3a11-1 under the
Securities Exchange Act of 1934, as amended, and any successor
statute and the rules and regulations thereunder, as shall be in
effect from time to time.
“ Executive
Commencement Date ” shall have the meaning set forth in
the Term Sheet.
“ Fair Market
Value ” shall mean the fair market value, with respect to
any Share, as determined by the Board of Directors of the
Corporation.
“ Family ”
shall mean any spouse, lineal ancestor or descendant, or sibling or
any trust for the exclusive benefit of any of the foregoing and/or
the Equity Participant.
“ Group ”
shall mean as to (a) a partnership, any or all of its general
or limited partners or any “affiliate” thereof (as
defined by Rule 405 promulgated under the Securities Act),
(b) a trust, any of the beneficiaries, settlers or grantors
now existing or hereafter arising of, or any Person under common
control with, such trust, (c) a corporation, any of its
stockholders, any subsidiary of such corporation or any corporation
which is under common control with such corporation, or any
directors, officers or employees of such corporation, and
(d) a limited liability company, any of its
members.
“ Initial Public
Offering ” shall mean the Corporation’s initial
distribution of New Securities in an underwritten Public Offering
to the general public pursuant to a registration statement filed
with and declared effective by the Commission pursuant to the
Securities Act at a price per New Security of not less than the
product of three (3) and the original purchase price per share
for the Corporation’s initial round of Series A Preferred
Stock (as adjusted for stock splits, stock dividends or similar
recapitalizations) and resulting in net proceeds to the Corporation
of not less than $40 million.
“ IRS ”
shall mean the Internal Revenue Service.
“ New Securities
” shall mean any Equity Stock, including, but not limited to,
shares of Common Stock, any security which is convertible into or
exercisable or exchangeable for Common Stock, or any right, option
or warrant to acquire any Common Stock.
“ Original Cost Per
Share ” shall have the meaning set forth in
Section 2.1 .
“ Person ”
shall mean and include a natural person, a corporation, a
partnership, a limited liability company, a trust, an
unincorporated organization, an educational institution, a
government or any department, agency or political subdivision
thereof, or any other entity.
“ Preferred
Shares ” shall mean, at the applicable time, all issued
and outstanding shares, if any, of the Corporation’s
preferred stock.
“ Public
Offering ” shall mean a distribution of New Securities in
a firm commitment underwritten public offering to the general
public pursuant to a registration statement filed with and declared
effective by the Commission pursuant to the Securities
Act.
“ Released
Shares ” shall mean Shares that are not Unreleased
Shares.
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“ Securities Act
” shall mean the Securities Act of 1933, as amended, and any
successor statute and the rules and regulations of the Commission
thereunder, as shall be in effect at the applicable
time.
“ Shares ”
shall have the meaning set forth in Section 2.1
.
“ Term Sheet
” shall mean the term sheet, dated as of July 27, 2005,
by and between the Corporation and the Equity
Participant.
“ Transfer
” shall include any direct or indirect sale, assignment,
transfer, pledge (but not including a pledge in favor of the
Corporation), hypothecation or other disposition of any Shares or
of any legal or beneficial interest therein.
“ Unreleased
Shares ” means Shares that in accordance with
Section 3.1 , have not been released and are subject to
repurchase by the Corporation at the Original Cost Per Share
pursuant to Section 4.1.
SECTION 2. Issuance of Common
Stock .
2.1 Subject to the terms and
conditions contained herein, the Corporation hereby sells to the
Equity Participant, and the Equity Participant hereby purchases
from the Corporation, 500,000 shares of Common Stock (the “
Shares ”) for a purchase price of $.001 per share (the
“ Original Cost Per Share ”) or the aggregate
purchase price of $500 (the “ Consideration ”).
Simultaneously with execution and delivery hereof, the Equity
Participant is delivering to the Corporation a check or wire
transfer of funds in the aggregate amount of the
Consideration.
2.2 The Equity Participant,
in his sole discretion, may make an effective election with the IRS
under Section 83(b) of the Code and the regulations
promulgated thereunder in the form of Exhibit A attached
hereto. The Equity Participant understands that under applicable
law such election must be filed with the IRS no later than thirty
(30) days after any acquisition of the Shares to be effective.
If the Equity Participant files an effective election, the excess
of the fair value of the Shares (which the IRS may assert is
different from the fair value determined by the Equity Participant)
covered by such election over the amount paid by the Equity
Participant for the Shares shall be treated as ordinary income
received by the Equity Participant. If the Equity Participant does
not file an effective election, future appreciation on the Shares
will generally be taxable as ordinary income when the right of
repurchase lapses as to such Shares pursuant to this Agreement The
foregoing is merely a brief summary of complex tax regulations, and
therefore, the Equity Participant is strongly advised to consult
with his own tax advisors.
2.3 In the event that the
Equity Participant files the election referred to in
Section 2.2 above, the Equity Participant will provide
the Corporation with a copy of such election as filed.
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SECTION 3. Repurchase Rights related
to Common Stock .
3.1 Except as otherwise
provided in Sections 3.2 and 3.3 (a) twenty-five
percent (25%) of the Shares shall become Released Shares on
the first anniversary of the Executive Commencement Date (the
“ First Anniversary ”), and (b) after the
First Anniversary, the remaining seventy-five percent (75%) of
the Shares shall become Released Shares ratably over a three
(3) year period at the rate of one-twelfth (1/12) of the
amount thereof at the end of each quarter anniversary of the First
Anniversary, as the result of which the Shares shall become fully
(100%) Released Shares upon the fourth (4 th ) anniversary of the Executive
Commencement; Date; provided, however, that in the event the Equity
Participant’s employment is terminated for any reason
(include by the Corporation with or without Cause), the Shares
which are Unreleased in the date of such termination shall remain
Unreleased Shares.
3.2 Notwithstanding the
foregoing, in the event the Equity Participant’s employment
is terminated without Cause in relation to the sale or other
disposition of all or substantially all of the Corporation’s
assets or a change in ownership in a single transaction or series
of related transactions of fifty percent (50%) or more of the
Corporation’s stock, the Shares which remain unreleased at
the time of termination, after the release of those Shares pursuant
to Section 3 2 shall be released on the date of such
termination and become Released Shares; provided, however that this
provision shall not apply in the event of any equity financings of
the Corporation.
3.3 Except as provided for in
Section 3.2 above, in the event the Equity
Participant’s employment is terminated without Cause,
twenty-five percent (25%) of the Unreleased Shares on the date
of such termination shall be released on the date of such
termination and become Released Shares.
SECTION 4. Termination of
Relationship .
4.1 In the event that the
Equity Participant’s employment is terminated for any reason
(with or without Cause), the Corporation shall have the right to
purchase from the Equity Participant, and if the Corporation
exercises its option pursuant to this Section 4 , the
Equity Participant shall sell to the Corporation upon the exercise
of such right, (1) all of the Equity Participant’s
Unreleased Shares (rounded up to the nearest whole Share) at the
Original Cost Per Share, and (2) all of the Equity
Participant’s Released Shares (rounded up to the nearest
whole Share) at the Fair Market value per Share; provided, however,
that if the Equity Participant’s employment is terminated by
the Corporation for Cause, the purchase price for any Released
Shares shall be the Original Cost Per Share.
4.2 The number of Shares
subject to purchase pursuant to Section 4.1 shall be
adjusted to give effect to any stock dividend, or other
distribution of stock made on or in respect of such Shares, or any
subdivision, combination or reclassification of the outstanding
capital stock of the Corporation or received in exchange for the
Shares.
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4.3 In order to exercise the
option to purchase the Equity Participant’s Shares under this
Section 4 , the Corporation shall deliver a written
notice to the Equity Participant (the “ Share Repurchase
Notice ”), indicating its election to purchase any or all
of the Shares and specifying the number of Unreleased Shares and
Released Shares, if applicable, which the Corporation elects to
purchase and the purchase price therefor, within ninety
(90) days after the Equity Participant’s
termination.
4.4 The repurchase of Shares
hereunder shall be made on a date within sixty (60) days of
the delivery of the Share Repurchase Notice, by delivery of payment
to the Equity Participant, by check or wire transfer, against
receipt of one or more certificates, properly endorsed, evidencing
the Equity Participant’s Unreleased and/or Released Shares,
if applicable, to be so purchased. If the repurchase is not
consummated by such date, the Corporation may deliver to the Equity
Participant by check or wire transfer the applicable repurchase
price for the Unreleased Shares and/or Released Shares, if
applicable, to be repurchased and may cancel the certificates
evidencing such Unreleased Shares and/or Released Shares, if
applicable, on the books and records of the Corporation.
4.5 Notwithstanding anything
to the contrary contained in this Agreement, all repurchases of
Shares by the Corporation shall be subject to applicable
restrictions contained in federal law, the Delaware General
Corporation Law and in the Corporation’s debt and equity
financing agreements. Notwithstanding anything to the contrary
contained in this Agreement, if any such restrictions prohibit or
otherwise delay the repurchase of any Shares thereunder which the
Corporation is otherwise entitled to make, the Corporation may make
such repurchases within sixty (60) days of the date that it is
permitted to do so under such restrictions.
4.6 In the event that any
Shares are the subject of repurchase by the Corporation pursuant to
this Section 4 , the Equity Participant and his
successors, assigns or representatives will take all steps
necessary and desirable to obtain all required third-party,
governmental and regulatory consents and approvals and take all
other actions necessary and desirable to facilitate consummation of
such repurchase(s) in a timely manner as are requested by the
Corporation.
SECTION 5. Legend on Shares and
Notice of Transfer .
5.1 Restrictive
Legends .
(a) Each certificate
evidencing Shares, and each certificate evidencing Shares held by
subsequent transferees of any such certificate, shall (unless
otherwise permitted by the provisions of Section 5.2 ,
hereof) be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
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1933, AS AMENDED, OR ANY
STATE SECURITIES LAW. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY EXEMPTION
THEREFROM UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAW.
(b) Each certificate
evidencing Shares, and each certificate evidencing Shares held by
subsequent transferees of any such certificate, shall also be
stamped or otherwise imprinted with a legend in substantially the
following form:
ADDITIONALLY, THE TRANSFER OF
THESE SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS OF A
RESTRICTED STOCK PURCHASE AGREEMENT EFFECTIVE AS OF OCTOBER 14,
2005, BETWEEN AEGERION PHARMACEUTICALS, INC. AND THE HOLDER OF
RECORD OF THIS CERTIFICATE AND NO SALE, ASSIGNMENT, TRANSFER,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF SUCH SECURITIES SHALL
BE VALID OR EFFECTIVE EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND
UNTIL SUCH TERMS AND CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF AEGERION
PHARMACEUTICALS, INC.
5.2 Notice of Transfer
.
(a) The Equity Participant,
and any other holder of any Shares by acceptance thereof, agrees
that, prior to any Transfer of any Shares, such holder will give
written notice to the Corporation of such holder’s intention
to effect such Transfer and to comply in all other respects with
the provisions of this Section 5.2 . Each such notice
shall contain (i) a statement setting forth the intention of
said holder’s prospective transferee with respect to its
retention or disposition of said Shares; and (ii) unless
waived by the Corporation, an opinion of counsel for said holder as
to the necessity or non-necessity for registration under the
Securities Act and applicable state securities laws in connection
with such Transfer and stating the factual and statutory basis
relied upon by counsel. The following provisions shall then
apply:
(i) If the proposed Transfer
of Shares may be effected without registration or qualification
under the Securities Act and any applicable state securities laws,
then the registered holder of such Shares shall be entitled to
Transfer such Shares in accordance with Section 5
hereof and the intended method of disposition specified in the
statement delivered by said holder to the Corporation.
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(ii) If the proposed Transfer
of such Shares may not be effected without registration under the
Securities Act or registration or qualification under any
applicable state securities laws, the registered holder of such
Shares shall not be entitled to Transfer such Shares pursuant to
Section 6 until the requisite registration or
qualification is effective.
(b) Notwithstanding the
provisions of Section 5.2(a) , in the case of a
Transfer by a holder to a member of such holder’s Family or
Group, no such opinion of counsel shall be necessary; provided,
that the transferee agrees in writing to be subject to
Section 5 hereof to the same extent as if such
transferee were originally a signatory to this
Agreement.
(c) Each certificate
evidencing the Shares issued upon such Transfer (and each
certificate evidencing any untransferred balance of such Shares)
shall bear the legend set forth in Section 5.1(a)
hereof unless (i) in the opinion of counsel (acceptable to the
Corporation) addressed to the Corporation the registration of
future Transfers is not required by the applicable provisions of
the Securities Act or applicable state securities laws;
(ii) the Corporation shall have waived the requirement of such
legend; or (iii) in the reasonable opinion of counsel to the
Corporation, such Transfer shall have been made in connection with
an effective registration statement filed pursuant to the
Securities Act or in compliance with the requirements of Rule 144
or Rule 144A (or any similar or successor rule) promulgated under
the Securities Act, and in compliance with applicable state
securities laws.
(d) Each certificate
evidencing the Shares issued upon such Transfer (and each
certificate evidencing any untransferred balance of such Shares)
shall bear the legend set forth in Section 5.1(b)
hereof for so long as this Agreement remains in effect. In the
event of the termination of this Agreement, the holder of Shares
may request that the Corporation issue a new certificate not
bearing the legend set forth in Section 5.1(b)
hereof.
SECTION 6. Covenants of the Equity
Participant and the Corporation .
6.1 Permitted
Transfers .
(a) Neither the Equity
Participant nor any permitted transferee of the Equity
Participant shall Transfer all or any of the Shares to any Person
except in accordance with Sections 3 and 4 hereof.
Notwithstanding anything to the contrary contained herein (other
than Section 3 hereof), the Equity Participant (and any
permitted transferee of the Equity Participant) may Transfer all or
any portion of h
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