Exhibit 10.14
J AZZ P HARMACEUTICALS , I NC .
STOCK RESTRICTION
AGREEMENT
THIS STOCK RESTRICTION AGREEMENT
(the “ Agreement ”) is entered into as of
April 30, 2003, by and among Jazz Pharmaceuticals, Inc., a
California corporation (the “Company”), and Samuel R.
Saks (the “ Founder ”).
RECITALS
A. The Founder currently owns
3,300,000 of the outstanding shares of the Company’s Common
Stock (the “ Shares ”).
B. The Company and the Founder wish
to enter into this Agreement in order to provide the Company with
certain rights of repurchase with respect to the Shares.
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) Founder’s willful misconduct or gross negligence
that is materially injurious to the Company;
(b) Founder’s conviction or plea of guilt or nolo
contender to any felony or crime involving moral turpitude;
(c) Founder’s commission of any act of fraud with
respect to the Company; or (d) Founder’s willful
violation of any federal or state securities law; or
(e) Founder’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 Founder with a written demand for
substantial performance setting forth in detail the specific
respects in which it believes the Founder 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 Founder terminates his Services because of
(a) a substantial diminution in the nature, status or prestige
of Founder’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 Founder’s responsibilities as they exist prior to a
Change of Control, -(b) a substantial diminution in
Founder’s compensation or benefits, or (c) the Company
requires the Founder to relocate as a condition of his continued
employment by the Company.
1.4 “ Repurchase Price ”
means $0.0023 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 Founder 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 Founder that are then subject to the
Right of Repurchase.
1.7 “ Vested Shares ”
means the Shares held by the Founder that are not subject to the
Right of Repurchase.
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2.
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Right of
Company to Repurchase Shares.
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2.1 Repurchase
Right . Except as
provided in Section 2.2 below, if the Founder terminates his
Services or the Company terminates the Founder’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 Founder 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 following 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).
2.2 Acceleration of Lapse of
Repurchase Rights Upon Certain Events. Notwithstanding the provisions of
Section 2.1 regarding expiration of the Right of
Repurchase,
(a) if, prior to a Change of
Control, the Company terminates the Founder’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
Founder’s Services without Cause or a Constructive
Termination occurs, then all of the then Unvested Shares held by
the Founder 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
Founder’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
2.
2.3 Repurchase
Procedure. The
Company’s Right of Repurchase shall terminate if not
exercised by written notice from the Company to the Founder within
ninety (90) days after the date of Termination.
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3.
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Transferability; Escrow.
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3.1 Restrictions on
Transfer . The
Founder 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 Founder, or to trusts for the benefit of such persons
or the Founder (provided that the transferee has agree in writing
to be bound by the restrictions on transfers by Founders under this
Agreement), the Founder 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 Founder in blank in the form attached hereto as
Exhibit B .
4.1 Stop-Transfer
Orders . The Founder
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.
This Agreement, including without
limitation the right of repurchase set forth herein, shall
terminate upon the agreement in writing to terminate by the Company
and the Founder.
All certificates evidencing shares
subject to this Agreement shall, during the term of this Agreement,
bear such restrictive legends as the Company and the
Company’s counsel deem necessary or advisable under
applicable law or pursuant to this Agreement, including, without
limitation, the following:
“CERTAIN OF THE SECURITIES
REPRESENTED HEREBY MAY BE SUBJECT TO A RIGHT OF REPURCHASE BY THE
COMPANY PURSUANT TO AN AGREEMENT RELATING
3.
TO SUCH SECURITIES, SHOULD THE
PERSON INITIALLY ISSUED THESE SECURITIES CEASE TO BE EMPLOYED BY
THE COMPANY OR ANY AFFILIATE THEREOF, AND SUCH SECURITIES MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED IF SUCH SECURITIES ARE SUBJECT TO
SUCH RIGHT OF REPURCHASE.”
The Founder acknowledges that he has
not relied and will not rely upon the Company with respect to any
tax consequences related to the ownership, purchase, or disposition
of the Shares. The Founder assumes full responsibility for all such
consequences and for the preparation and filing of all tax returns
and elections which may or must be filed in connection with such
Shares. The Founder has executed and delivered to the Company an
Acknowledgment in the form of Exhibit D hereto.
8.1 Binding
Effect . This
Agreement shall be binding upon, and inure to the benefit of, the
executors, administrators, heirs, legal representatives,
successors, and assigns of the parties hereto.
8.2 Governing
Law . This Agreement
shall be governed by, and construed in accordance with, the laws of
the State of California excluding those laws that direct the
application of another jurisdiction’s laws.
8.3
Counterparts. This
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one instrument.
8.4 Notices
. All notices required or permitted
hereunder shall be in writing and shall be deemed effectively
given: (i) upon personal delivery to the party to be notified,
(ii) when sent by confirmed facsimile if sent during normal
business hours of the recipient, or if not, then on the next
business day; (iii) five days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid; or (iv)