RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is made this
17th day of April 1996, by and between Triangle Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), and Emory University (the "Stockholder,"
which term includes such entity's successors and permitted assigns).
WHEREAS, Stockholder has agreed to purchase from the Company and the
Company has agreed to sell to the Stockholder, on the terms and conditions set
forth in this Agreement, five hundred thousand (500,000) shares of the Company's
Common Stock (the "Stock," which term for purposes of this Agreement also
includes any additional shares of Common Stock of the Company now owned or
hereafter acquired by the Stockholder) in consideration of the Stockholder's
execution of the License Agreement between the Company and the Stockholder dated
as of the date hereof.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
hereby agree as follows:
1. PURCHASE OF COMMON STOCK
(a) PURCHASE. Stockholder hereby purchases, and the Company hereby
sells to Stockholder, five hundred thousand (500,000) shares of Stock. The
Company represents that once issued in accordance with the terms of this
Agreement, the Stock shall be fully paid and nonassessable.
(b) EXECUTION OF LICENSE AGREEMENT. Concurrently with the execution
of this Agreement, Stockholder shall execute the License Agreement between the
Company and the Stockholder dated as of the date hereof as consideration for the
issuance of the five hundred thousand (500,000) shares of Stock.
(c) DELIVERY OF CERTIFICATES. The certificates representing the
Stock purchased hereunder shall be delivered to Stockholder promptly after the
date of this Agreement.
2. RESTRICTIONS ON TRANSFER. Except as permitted by the terms of this
Agreement, Stockholder may not make any sale, exchange, transfer, assignment,
gift, pledge, encumbrance, hypothecation or alienation of any shares of the
Stock, or any interest in such shares, now held by or hereafter acquired by
Stockholder, whether voluntarily or involuntarily or, solely with respect to any
individuals or entities to whom Emory University transfers any Stock in
accordance with the terms of this Agreement, by operation of law (collectively
referred to herein as a "transfer").
3. RIGHT OF FIRST REFUSAL.
(a) NOTICE TO THE COMPANY.
(i) In the event Stockholder desires to transfer any Stock,
Stockholder must deliver a notice in writing by certified mail ("Notice") to the
Company stating (A) its bona fide intention to sell or transfer such shares, (B)
the number of such shares to be sold or transferred, (C) the price, if any, for
which it proposes to sell or transfer such shares, and (D) the name of the
proposed purchaser or transferee.
(ii) In the event the proposed transfer is partially or
completely in exchange for assets other than cash, or in the event of a gift,
property settlement or other transfer in which the proposed purchaser or
transferee is not paying the full price for the Stock, then such assets shall be
deemed to have a cash value in the amount as agreed by the Company and the
Stockholder, in which case such cash value, when added to any cash to be
exchanged and then divided by the number of shares of Stock to be transferred,
shall be deemed the price per share set forth in the Notice. If the Company and
the Stockholder cannot agree on such cash value within twenty (20) days after
the Company's receipt of the Notice, the valuation shall be made by an appraiser
of recognized standing selected by the Company and the Stockholder or, if they
cannot agree on an appraiser with thirty (30) days after the Company's receipt
of the Notice, each shall select an appraiser of recognized standing and the two
appraisers shall designate a third appraiser of recognized standing, whose
appraisal shall be determinative of such value.
(b) COMPANY RIGHT OF FIRST REFUSAL. The Company shall have an
exclusive, irrevocable option (the "Company Option") to purchase all and not
less than all of the Stock to which the Notice refers at the price per share
specified in the Notice (as determined in Section 3(a)(ii)), at any time within
thirty (30) days after the later of (i) receipt of the Notice, in the event the
proposed transfer is solely for cash and the proposed purchaser or transferee is
paying the full price for the Stock, and (ii) the date the cash value is
determined in accordance with Section 3(a)(ii) above, in the event the proposed
transfer is partially or completely in exchange for assets other than cash, or
in the event of a gift, property settlement or other transfer in which the
proposed purchaser or transferee is not paying the full price for the Stock.
The Company shall exercise the Company Option by written notice signed by an
officer of the Company and delivered or mailed to the Stockholder within thirty
(30) days after the later of the dates set forth in clauses (i) and (ii) of this
Section 3(b) (the "Company Settlement Notice"), which notice shall specify the
time, place and date for settlement of such purchase.
(c) COMPANY SETTLEMENT. Within ten (10) days of receipt of the
Company Settlement Notice, the Stockholder must deliver to the Company all
certificates for the Stock being acquired by the Company which are not already
in the Company's custody, together with proper assignments in blank of the Stock
with signatures properly guaranteed and with such other documents as may be
required by the Company to provide reasonable assurance that each necessary
endorsement is genuine
and effective, and the Company must thereupon immediately deliver to the
Stockholder full cash payment for the Stock being acquired, provided that if the
terms of payment set forth in the Notice were other than cash against delivery,
the Company shall pay for said shares on the same terms and conditions set forth
in such Notice.
(d) TRANSFER OF STOCK UPON FAILURE TO EXERCISE COMPANY OPTION. In
the event that the Company (i) does not timely provide the Stockholder with the
Company Settlement Notice or (ii) fails to timely pay the Stockholder for such
Stock or timely close the transfer transaction pursuant to Section 3(c), the
Stockholder may, not later than sixty (60) days following the expiration of the
Company Option, conclude a transfer to the proposed transferee of not less than
all of the Stock covered by the Notice on terms and conditions not more
favorable to the transferee than those described in the Notice. Any proposed
transfer on terms and conditions more favorable than those described in the
Notice, as well as any subsequent proposed transfer of any Stock by the
Stockholder, shall again be subject to, and require compliance with, the
provisions of Section 3.
(e) EXEMPT TRANSFERS. The provisions of Section 3 of this Agreement
shall not apply to (i) the sale of any Stock to the Company or (ii) the transfer
of any Stock pursuant to the provisions of subsection 3(f) below.
(f) TRANSFERS TO FACULTY MEMBERS, ETC. The Stockholder shall be
permitted to transfer any portion of the Stock owned by it to its faculty
members or other scientists, inventors and other persons pursuant to any plan or
other arrangement adopted by Stockholder to recognize the contributions made by
such faculty members, scientists, inventors and other persons to Stockholder;
PROVIDED, HOWEVER, that no such transfer shall be effective unless and until the
transferee has agreed in writing, in form and substance reasonably acceptable to
and for the benefit of the Company, to be bound by the provisions of this
Agreement. To complete any transfers pursuant to this Section 3(f), the
Stockholder must deliver to the Company all certificates for the Stock being
transferred, together with proper assignments in blank of the Stock with
signatures properly guaranteed and with such other documents as may be required
by the Company to provide reasonable assurance that each necessary endorsement
is genuine and effective, and the transferee must deliver to the Company his or
her written agreement, in form and substance reasonably acceptable to and for
the benefit of the Company, to be bound by the provisions of this Agreement, and
the Company shall within ten (10) business days thereafter deliver to the
transferee certificates for the Stock being transferred.
4. SECURITIES LAW COMPLIANCE.
(a) REPRESENTATIONS AND WARRANTIES. Stockholder hereby represents
and warrants to the Company that:
(i) AUTHORIZATION. This Agreement constitutes Stockholder's
valid and legally binding obligation, enforceable in accordance with its terms.
(ii) PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with Stockholder in reliance upon Stockholder's representation to the Company,
which by Stockholder's execution of this Agreement Stockholder hereby confirms,
that the Common Stock to be received by Stockholder will be acquired for
investment for Stockholder's own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and that
Stockholder has no present intention of selling, granting any participation in,
or otherwise distributing the same. By executing this Agreement, Stockholder
further represents that Stockholder does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Stock. Stockholder represents that it has full power and authority to enter
into this Agreement.
(iii) INVESTMENT EXPERIENCE. Stockholder is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Stock.
(iv) RESTRICTED SECURITIES. Stockholder hereby confirms that it
has been informed that the shares of Stock are restricted securities under the
Securities Act of 1933, as amended (the "1933 Act"), and may not be resold or
transferred unless the shares are first registered under the Federal securities
laws or unless an exemption from such registration is available. Accordingly,
Stockholder hereby acknowledges that it is prepared to hold the shares of Stock
for an indefinite period and that it is aware that Rule 144 of the Securities
and Exchange Commission issued under the 1933 Act is not presently available to
exempt the sale of the shares of Stock from the registration requirements of the
(b) DISPOSITION OF SHARES. Stockholder hereby agrees that it shall
make no disposition of the shares of Stock unless and until:
(i) It shall have notified the Company of the proposed
disposition and provided a written summary of the terms and conditions of the
(ii) It shall have complied with all requirements of this
Agreement applicable to the disposition of the shares of Stock; and
(iii) It shall have provided the Company with written
assurances, in form and substance satisfactory to the Company, that (i) the
proposed disposition does not require registration of the shares of Stock under
the 1933 Act or (ii) all appropriate action necessary for compliance with the
registration requirements of the 1933 Act or of any exemption from registration
available under the 1933 Act (including Rule 144) has been taken.
The Company shall NOT be required (i) to transfer on its books any
shares of Stock which have been sold or transferred in violation of the
provisions of this Section 4 OR (ii) to treat as the owner of the shares of
Stock, or otherwise to accord voting or dividend rights to, any transferee to
whom the shares of Stock have been transferred in contravention of this
(c) LEGEND. Each certificate representing the shares of Stock owned
by the Stockholder shall be endorsed with the following legends:
(i) "THE SALE OR TRANSFER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A
CERTAIN RESTRICTED STOCK PURCHASE AGREEMENT BY AND AMONG THE
REGISTERED HOLDER (OR ITS PREDECESSOR IN INTEREST) AND TRIANGLE
PHARMACEUTICALS, INC. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY."
(ii) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE ACT, OR PURSUANT
TO RULE 144 UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT."
(iii) "THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON
PARAGRAPH (13) OF CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES
ACT OF 1973,' AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A
TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER SUCH ACT."
(iv) Any legend required to be placed thereon by applicable
state securities laws.
5. SPECIAL PROVISIONS.
(a) STOCKHOLDER RIGHTS. Until such time as the Company purchases the
Stock pursuant to an exercise of the Company Option under this Agreement,
(or any successors in interest) shall have all the rights of a stockholder
(including voting and dividend rights) with respect to the Stock subject,
however, to the transfer restrictions of Section 2.
(b) MARKET STAND-OFF AGREEMENT. Stockholder hereby agrees that,
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company following the effective date of
a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except common stock included in such
registration; PROVIDED, HOWEVER, that:
(i) such agreement shall not exceed 180 days for the first such
registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(ii) such agreement shall not exceed 90 days for any subsequent
registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(iii) Stockholder shall not be subject to such agreement unless
all executive officers and directors of the Company enter into similar
agreements and all holders of registration rights granted by the Company are
subject to or obligated to enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Stock of Stockholder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
6. TERMINATION. The Company Option under Section 3 of this Agreement
shall terminate upon the occurrence of any one of the following events (each, a
(a) the liquidation, dissolution or indefinite cessation of the
business operations of the Company; or
(b) the execution by the Company of a general assignment for the
benefit of creditors or the appointment of a receiver or trustee to take
possession of the property and assets of the Company; or
(c) the effective date of a bona fide firm commitment underwritten
public offering of the Company's Common Stock registered under the 1933 Act.
7. MISCELLANEOUS PROVISIONS.
(a) NOTICE. Any notice required or permitted to be given to a party
pursuant to the provisions of this Agreement shall be in writing and shall be
effective upon personal or facsimile delivery or upon deposit in the U.S. mail
(or equivalent independent service), postage prepaid and properly addressed to
the party to be notified as set forth below such party's signature or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties hereto.
(b) SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed and interpreted in such manner as to be effective and valid
under applicable law.
(c) WAIVER OR MODIFICATION. Any amendment or modification of this
Agreement and any waiver of any term of this Agreement shall be effective only
if evidenced by a written instrument executed by Stockholder and the Company.
(d) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware as applied to contracts
among Delaware residents entered into and performed entirely within Delaware.
(e) ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
(f) FURTHER ASSURANCES. Each party agrees to execute, acknowledge
and deliver all such further documents, instruments and agreements, and do all
such other acts, as may be reasonably necessary or appropriate in order to carry
out the intent and purpose of this Agreement.
(g) ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto,
if any) constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof.
(h) SUCCESSORS AND ASSIGNS. This Agreement and the rights and
obligations of the parties hereunder shall inure to the benefit of, and be
binding upon, their respective successors and assigns.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(j) SEPARATE COUNSEL. Stockholder acknowledges and agrees that it
has been provided the opportunity and encouraged to consult with counsel of
Stockholder's own choosing with respect to this Agreement and that Brobeck,
Phleger & Harrison solely represents the interests of the Company.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TRIANGLE PHARMACEUTICALS, INC., a Delaware
By: /s/David Barry
Address: 4 University Place
4611 University Drive
Durham, North Carolina 27707
Address: 2009 Ridgewood Drive
Atlanta, Georgia 30322
Attention: Vincent La Terza
Director of Licensing and Patent Counsel
[SIGNATURE PAGE TO RESTRICTED STOCK PURCHASE AGREEMENT]