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Exhibit 10.12
SOMAXON PHARMACEUTICALS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT ("AGREEMENT") is made
as of
August 15, 2003 by and between Somaxon Pharmaceuticals, Inc., a
Delaware
corporation (the "COMPANY"), and _______________ (the
"PURCHASER").
The parties agree as follows:
1. Sale of Stock. The Company hereby agrees to sell to the
Purchaser
and the Purchaser hereby agrees to purchase an aggregate of
________ shares of
the Company's Common Stock (par value $0.0001 per share) at a
purchase price of
$0.0001 per share (the "SHARES"), for an aggregate purchase
price of
$__________.
2. Payment of Purchase Price. The payment of the purchase
price
shall be by cash, check or wire transfer.
3. Repurchase Option. In the event of any voluntary or
involuntary
termination of [EXECUTIVE OFFICER ONLY: the Purchaser's
employment by, or
services to,] [DIRECTOR ONLY: the service of [Name of Director]
(the "DIRECTOR")
as a director of] the Company for any or no reason (including
death or
disability) before all of the Shares are released from the
Company's Repurchase
Option (as defined below), the Company shall, upon the date of
such termination
(as reasonably fixed and determined by the Company), have an
irrevocable,
exclusive option, but not the obligation, for a period of 90
days from such date
to repurchase all or any portion of the Unreleased Shares (as
defined below in
Section 4) at such time (the "REPURCHASE OPTION") at the
original purchase price
per share (the "REPURCHASE PRICE"). The Repurchase Option shall
be exercisable
by the Company by written notice to the Purchaser or the
Purchaser's executor
and shall be exercisable by delivery to the Purchaser or the
Purchaser's
executor of cash, check or wire transfer in an amount equal to
the Repurchase
Price times the number of Shares to be repurchased (the
"AGGREGATE REPURCHASE
PRICE"). Upon delivery of such notice and the payment of the
Aggregate
Repurchase Price, the Company shall become the legal and
beneficial owner of the
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 Shares being repurchased by the Company. The
Repurchase
Option set forth in this Section 3 may be assigned by the
Company in whole or in
part in its sole and unfettered discretion.
4. Release of Shares From Repurchase Option.
(a) The Shares shall be released from the Company's
Repurchase
Option pursuant to the following schedule:
100% of the Shares (the "RESTRICTED SHARES") shall be
subject to the Repurchase Option as of May 1, 2003 (the
"VESTING COMMENCEMENT DATE"). [EXECUTIVE OFFICER ONLY:
1/48th] [DIRECTOR ONLY: 1/24th] of the Restricted Shares
shall be released from the Repurchase Option on each
monthly anniversary of the Vesting Commencement Date
such that all Restricted Shares shall be released from
the Repurchase Option on the
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[EXECUTIVE OFFICER ONLY: four (4)] [DIRECTOR ONLY: two
(2)] year anniversary of the Vesting Commencement Date.
Any of the Shares which, from time to time, have not yet
been
released from the Repurchase Option are referred to herein as
"Unreleased
Shares." The number of Shares released each month from the
Repurchase Option
shall be rounded down to the next whole number of Option Shares,
except in the
last month of the [EXECUTIVE OFFICER ONLY: four (4)] [DIRECTOR
ONLY: two (2)]
year period when all Unreleased Shares shall be released from
the Repurchase
Option
(b) Upon an Acceleration Event (defined below), the
Repurchase
Option shall lapse for 100% of the Unreleased Shares (if any).
An "ACCELERATION
EVENT" shall mean [EXECUTIVE OFFICER ONLY: any of the
following:
(i) The termination by the Company of the Purchaser's
employment with the Company for any reason other than Cause
(defined below).
Unless otherwise defined in an employment or services agreement
between the
Purchaser and the Company (which definition will control),
"CAUSE" shall mean
dishonesty, fraud, misconduct, unauthorized use or disclosure of
confidential
information or trade secrets, or conviction or confession of a
crime punishable
by law (except minor violations), in each case as determined by
the Board of
Directors of the Company, and its determination shall be
conclusive and binding;
or
(ii) The termination by the Purchaser of the Purchaser's
employment with the Company for Good Reason (defined below).
Unless otherwise
defined in an employment or services agreement between the
Purchaser and the
Company (which definition will control), "GOOD REASON" shall
mean the occurrence
of any of the following events or conditions and the failure of
the Successor
Corporation to cure such event or condition within thirty (30)
days after
receipt of written notice from the Purchaser:
(1) a change in the Purchaser's position or
responsibilities (including reporting responsibilities) that
represents a
substantial reduction in the position or responsibilities as in
effect
immediately prior thereto; the assignment to the Purchaser of
any duties or
responsibilities that are materially inconsistent with such
position or
responsibilities; or any removal of the Purchaser from or
failure to reappoint
or reelect the Purchaser to any of such positions, except in
connection with the
termination of the Purchaser's employment for Cause, as a result
of his or her
disability or death, or by the Purchaser other than for Good
Reason;
(2) a material reduction in the Purchaser's annual
base salary, except in connection with a general reduction in
the compensation
of all personnel of the Company and its parent and subsidiaries,
if any;
(3) the Company requiring the Purchaser (without
the Purchaser's consent) to be based at any place outside a
50-mile radius of
his or her initial place of employment with the Company, except
for reasonably
required travel on the Company's business;
(4) the Company's failure to provide the Purchaser
with compensation and benefits substantially equivalent (in
terms of benefit
levels and/or reward opportunities) to those provided for under
each material
employee benefit plan, program and practice as in effect from
time to time; or
2
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(5) any material breach by the Company of its
obligations to the Purchaser under any applicable employment or
services
agreement between the Purchaser and the Company.
(c) In the event of a Change of Control (defined below), the
Repurchase Option shall lapse for (i) 50% of the Unreleased
Shares (if any) at
the time of the Change of Control and (ii) the remaining
Unreleased Shares (if
any) on the twelve month anniversary of the Change of Control.
In the event an
Acceleration Event occurs between the Change of Control and the
twelve month
anniversary of the Change of Control the provisions of Section
4(b) above shall
apply.]
[DIRECTOR ONLY: the termination by the Company of the
Director's
service as a director of the Company for any reason other than
Cause (defined
below). "CAUSE" shall mean dishonesty, fraud, misconduct,
unauthorized use or
disclosure of confidential information or trade secrets, or
conviction or
confession of a crime punishable by law (except minor
violations), in each case
as determined by the Board of Directors of the Company, and its
determination
shall be conclusive and binding.
(c) In the event of a Change of Control (defined below), the
Repurchase Option shall lapse for 100% of the Unreleased Shares
(if any) at the
time of the Change of Control.]
A "CHANGE OF CONTROL" shall mean (1) a merger or consolidation
of the Company
with or into any other corporation or other entity or person or
(2) a sale,
lease, exchange or other transfer in one transaction or a series
of related
transactions of all or substantially all the Company's
outstanding securities or
all or substantially all the Company's assets; provided that the
following
events shall not constitute a "Change of Control": (A) a merger
or consolidation
of the Company in which the holders of the voting securities of
the Company
immediately prior to the merger or consolidation hold at least a
majority of the
voting securities in the Successor Corporation immediately after
the merger or
consolidation; (B) a sale, lease, exchange or other transaction
in one
transaction or a series of related transactions of all or
substantially all of
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