Exhibit 10.33
SCOLR PHARMA, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
SCOLR Pharma, Inc. has granted
to the Participant named in the Notice of Grant of Stock
Purchase Right (the “ Notice ” ) to
which this Restricted Stock Purchase Agreement (the “
Agreement ” ) is attached a Purchase Right
consisting of a right to purchase certain shares of Common Stock
upon the terms and conditions set forth in the Notice and this
Agreement. The Purchase Right has been granted pursuant
to and shall in all respects be subject to the terms and conditions
of the SCOLR Pharma, Inc. 2004 Equity Incentive Plan (the
“ Plan ” ), as amended to the Date of
Grant, the provisions of which are incorporated herein by
reference. By signing the Notice, the Participant: (a)
represents that the Participant has received copies of, and has
read and is familiar with the terms and conditions of the Notice,
the Plan and this Agreement, (b) accepts the Purchase Right subject
to all of the terms and conditions of the Notice, the Plan and this
Agreement, and (c) agrees to accept as binding, conclusive and
final all decisions or interpretations of the Board upon any
questions arising under the Notice, the Plan or this
Agreement.
1.
Definitions and Construction .
1.1
Definitions . Unless otherwise defined
herein, capitalized terms shall have the meanings assigned to such
terms in the Notice or the Plan.
1.2
Construction . Captions and titles
contained herein are for convenience only and shall not affect the
meaning or interpretation of any provision of this
Agreement. Except when otherwise indicated by the
context, the singular shall include the plural and the plural shall
include the singular. Use of the term “or”
is not intended to be exclusive, unless the context clearly
requires otherwise.
2.
Exercise of Purchase Right .
2.1
Exercise of Purchase Right. Provided that the
Participant’s service to the Company or its Subsidiaries has
not terminated (except as provided by Section 4), the Purchase
Right shall be exercisable on and after the Date of Grant and prior
to the Expiration Date in an amount not to exceed the Total Number
of Shares, subject to the Company’s repurchase rights set
forth in Sections 5 and 6.
2.2
Method of Exercise of Purchase Right .
Exercise of the Purchase Right shall be by written
notice to the Company which must state the election to exercise the
Purchase Right, the number of whole shares of Common Stock for
which the Purchase Right is being exercised and such other
representations and agreements as to the Participant’s
investment intent with respect to such shares as may be required
pursuant to the provisions of this Agreement. The
written notice must be signed by the Participant and must be
delivered in person, by certified or registered mail, return
receipt requested, by confirmed facsimile transmission, or by such
other means as the Company may permit, to the Chief Financial
Officer of the Company, or other authorized representative of the
Company, prior to the Expiration Date, accompanied by (i) full
payment of the aggregate Purchase Price for the number of shares of
Stock being purchased and
(ii) an executed copy, if required herein, of the then current
form of escrow agreement referenced below. The Purchase
Right shall be deemed to be exercised upon receipt by the Company
of such written notice, the aggregate Purchase Price, and, if
required by the Company, such executed agreements.
2.3
Payment of Purchase Price. Payment of the
aggregate Purchase Price for the number of shares of Common Stock
for which the Purchase Right is being exercised shall be made in
cash, by check, cash equivalent, cancellation of debt, or in the
form of the Participant’s past service rendered to the
Company or its Subsidiaries or for its benefit having a value not
less than the aggregate purchase price of the shares being
acquired, or such other payment as determined by the Plan
Administrator.
2.4
Tax Withholding. At the time the Purchase Right
is exercised, in whole or in part, or at any time thereafter as
requested by the Company, the Participant hereby authorizes
withholding from payroll and any other amounts payable to the
Participant, and otherwise agrees to make adequate provision for
any sums required to satisfy the federal, state, local and foreign
tax withholding obligations of the Participating Company Group, if
any, which arise in connection with the shares acquired pursuant to
this Agreement, including, without limitation, obligations arising
upon (i) the exercise, in whole or in part, of the Purchase
Right, (ii) the transfer, in whole or in part, of any shares
acquired, or (ii) the lapsing of any restriction with respect
to any shares acquired. The Purchase Right is not
exercisable unless the tax withholding obligations of the
Participating Company Group are satisfied. Accordingly,
the Company shall have no obligation to deliver shares of Stock or
to release shares of Stock from an escrow established pursuant to
this Agreement until the tax withholding obligations of the
Participating Company Group have been satisfied by the
Participant.
2.5
Certificate Registration . The
certificate for the shares of Stock purchased shall be registered
in the name of the Participant, or, if applicable, in the names of
the heirs of the Participant.
2.6
Restrictions on Sale and Issuance of Shares .
The sale and issuance of shares of Stock shall be
subject to compliance with all applicable requirements of federal,
state or foreign law with respect to such
securities. The Purchase Right may not be exercised if
the issuance of shares of Stock upon exercise would constitute a
violation of any applicable federal, state or foreign securities
laws or other law or regulations or the requirements of any stock
exchange or market system upon which the Stock may then be
listed. In addition, the Purchase Right may not be
exercised unless (i) a registration statement under the
Securities Act shall at the time of exercise of the Purchase Right
be in effect with respect to the shares issuable upon exercise of
the Purchase Right or (ii) in the opinion of legal counsel to
the Company, the shares issuable upon exercise of the Purchase
Right may be issued in accordance with the terms of an applicable
exemption from the registration requirements of the Securities
Act. The inability of the Company to obtain from any
regulatory body having jurisdiction the authority, if any, deemed
by the Company’s legal counsel to be necessary to the lawful
issuance and sale of any shares subject to the Purchase Right shall
relieve the Company of any liability in respect of the failure to
issue or sell such shares as to which such requisite authority
shall not have been obtained. As a condition to the
exercise of the Purchase Right, the Company may require the
Participant to satisfy any qualifications that may be necessary or
appropriate, to evidence
compliance with
any applicable law or regulation and to make any representation or
warranty with respect thereto as may be requested by the
Company.
Except as otherwise provided in the Plan, shares acquired
pursuant to this Agreement shall become Vested Shares as provided
in the Notice.
4.
Nontransferability of Purchase Right .
The Purchase Right may be exercised during the lifetime of
the Participant only by the Participant or the Participant’s
guardian or legal representative and may not be assigned or
transferred in any manner except by will or by the laws of descent
and distribution. Following the death of the
Participant, the Purchase Right may be exercised prior to the
Expiration Date by the Participant’s legal representative or
by any person empowered to do so under the deceased
Participant’s will or under the then applicable laws of
descent and distribution.
5.
Unvested Share Repurchase Option .
5.1
Grant of Unvested Share Repurchase Option
. In the event the Participant’s
Service with the Participating Company Group is terminated for
Cause (as defined below), or the Participant voluntarily ceases to
provide Services to the Participating Company Group without Good
Reason (as defined below) (other than death or disability (meaning
the Participant’s inability to perform the
Participant’s duties for any consecutive 90 day period in any
one year period as a result of physical or mental impairment as
determined by a physician reasonably accepted by the Company)), or,
if the Participant, the Participant’s legal representative,
or other holder of shares acquired pursuant to this Agreement,
attempts to sell, exchange, transfer, pledge, or otherwise dispose
of (other than pursuant to an Ownership Change Event, as defined in
Section 5.6 below) any Unvested Shares, as defined in Section 5.2
below (the “ Unvested Shares ” ), the
Company shall have the right to repurchase the Unvested Shares
under the terms and subject to the conditions set forth in this
Section 5 (the “ Unvested Share Repurchase Option
” ).
5.2
Unvested Shares Defined . The “
Unvested Shares ” shall mean, on any given date,
the number of shares of Stock acquired upon exercise of the
Purchase Right which exceed the Vested Shares determined as of such
date.
5.3
Exercise of Unvested Share Repurchase Option .
The Company may exercise the Unvested Share Repurchase
Option by written notice to the Participant within sixty (60) days
after (a) termination of the Participant’s Service as
described in Section 5.1, or (b) the Company has received
notice of the attempted disposition of Unvested
Shares. If the Company fails to give notice within such
sixty (60) day period, the Unvested Share Repurchase Option shall
terminate unless the Company and the Participant have extended the
time for the exercise of the Unvested Share Repurchase
Option. The Unvested Share Repurchase Option must be
exercised, if at all, for all of the Unvested Shares, except as the
Company and the Participant otherwise agree.
5.4
Payment for Shares and Return of Shares to Company .
The purchase price per share being repurchased by the
Company shall be an amount equal to the Participant’s
original cost per share, as adjusted pursuant to Section 8 (the
“ Repurchase Price ” ). The
Company shall pay the aggregate Repurchase Price to the Participant
in cash within thirty (30) days after the date of the written
notice to the Participant of the Company’s exercise of the
Unvested Share Repurchase Option. For purposes of the
foregoing, cancellation of any purchase money indebtedness of the
Participant to any Participating Company for the shares shall be
treated as payment to the Participant in cash to the extent of the
unpaid principal and any accrued interest canceled. The
shares being repurchased shall be delivered to the Company by the
Participant at the same time as the delivery of the Repurchase
Price to the Participant.
5.5
Assignment of Unvested Share Repurchase Option .
The Company shall have the right to assign the Unvested
Share Repurchase Option at any time, whether or not such option is
then exercisable, to one or more persons as may be selected by the
Company.
5.6
Ownership Change Event . An “
Ownership Change Event ” shall be deemed to have
occurred if any of the following occurs with respect to the
Company: (i) the issuance by the Company in a single or
a series of related transactions of voting securities representing
more than fifty percent (50%) of the total outstanding voting
securities of the Company following such issuance; (ii) the direct
or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than fifty
percent (50%) of the voting securities of the Company; (iii) a
merger or consolidation in which the Company is a party, other than
a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or
its parent) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such
merger or consolidation; (iv) the sale, exchange, or transfer of
all or substantially all of the assets of the Company; or (v) a
liquidation or dissolution of the Company. Upon the
occurrence of an Ownership Change Event, any Unvested Shares and
any and all new, substituted or additional securities or other
property to which the Participant is entitled by reason of the
Participant’s ownership of Unvested Shares will be Vested
Shares and no longer subject to the Unvested Share Repurchase
Option.
5.7
Certain Definitions .
(a)
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