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EXHIBIT 10.8
RIBOGENE, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT ("Agreement") is made as of
_________, 19__, by and between RiboGene, Inc., a California corporation (the
"Company"), and 1* ("Purchaser") pursuant to the Company's 1993 Stock Plan.
1. Sale of Stock. Subject to the terms and conditions hereof, on
the Closing Date the Company will issue and sell to Purchaser, and Purchaser
agrees to purchase from the Company, 2* shares of the Company's Common Stock
(the "Shares") at a purchase price of $3* per Share for a total purchase price
of $4*. The term "Shares" refers to the purchased Shares and all securities
received in replacement of Shares or as stock dividends or splits, all
securities received in replacement of the Shares in a recapitalization, merger,
reorganization, exchange or the like, and all new, substituted or additional
securities or other properties to which Purchaser is entitled by reason of
Purchaser's ownership of the Shares.
2. Closing: Security Interest.
(a) The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the principal office of the Company
simultaneously with the execution of this Agreement by the parties or on such
other date as they agree (the "Closing Date").
(b) At the Closing, the Company will deliver to Purchaser
a certificate representing the Shares to be purchased by him (which shall be
issued in Purchaser's name) against payment of the purchase price therefor.
The purchase price for the Shares shall be paid to the Company by check
rendered to the Company in the amount of $5* and by delivery to the Company of
Purchaser's full recourse promissory note (the "Note") for the balance of the
purchase price, if any, in the form attached hereto as EXHIBIT A.
(c) With respect to the Note, the parties agree to the
following:
(1) The Note shall become payable in full upon
the voluntary or involuntary termination or cessation of employment of
Purchaser With the Company, for any reason, with or without cause (including
death or disability).
(2) Purchaser shall deliver to the Secretary of
the Company, or his designee (hereinafter referred to as the "Pledge Holder"),
all certificates representing the Shares, together with (i) an Assignment
Separate from Certificate in the form attached hereto Exhibit B executed by
Purchaser and by Purchaser's spouse (if required for transfer), in blank, for
use in transferring all or a portion of said Shares to the Company if, as and
when required under this Section 2(c) or under any other provision of this
Agreement including,
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without limitation, Section 3. In addition, Purchaser's spouse, if any, shall
execute and deliver to the Company the Consent of Spouse attached hereto as
EXHIBIT C.
(3) As security for the payment of the Note and
any renewal, extension or modification thereof, Purchaser hereby grants to the
Company a security interest in and pledges with and delivers to the Company
Purchaser's Shares (sometimes referred to herein as the "Collateral").
In the event that Purchaser prepays all or a
portion of the Note, in accordance with the provisions thereof Purchaser
intends, unless written notice to the contrary is delivered to the Pledge
Holder, that the Shares represented by the portion of the Note so repaid,
including annual interest thereon, shall continue to be so held by the Pledge
Holder, to serve as independent collateral for the outstanding portion of the
Note for the purpose of commencing the holding period set forth in Rule 144(d)
promulgated under the Securities Act of 1933, as amended (the "Securities
Act").
(4) In the event of any foreclosure of the
security interest, the Company may sell the Shares at a private sale or may
repurchase the Shares itself. The parties agree that, prior to the
establishment of a public market for the Shares of the Company, the securities
laws affecting sale of the Shares make a public sale of the Shares commercially
unreasonable. The parties further agree that the repurchasing of such Shares
by the Company, or by any person to whom the Company may have assigned its
rights hereunder, is commercially reasonable if made at a price determined by
the Board of Directors in its discretion, fairly exercised, representing what
would be the fair market value of the Shares reduced by any limitation on
transferability, whether due to the size of the block of Shares or the
restrictions of applicable securities laws.
(5) In the event of default in payment when due
of any indebtedness under Purchaser's Note, the Company may elect then, or at
any time thereafter, to exercise all rights available to a Secured Party under
the California Commercial Code including the right to sell the Collateral at a
private or public sale or repurchase the Shares as provided above. The
proceeds of any sale shall be applied in the following order.
(i) To the extent necessary, proceeds
shall be used to pay all reasonable
expenses of the Company in enforcing
this Agreement, including, without
limitation, reasonable attorney's
fees and legal expenses incurred by
the Company.
(ii) To the extent necessary, proceeds
shall be used to satisfy any
remaining indebtedness under
Purchaser's Note.
(iii) Any remaining proceeds shall be
delivered Purchaser.
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(6) Upon full payment by Purchaser of all amounts
due on the Note, Pledge Holder shall deliver to Purchaser all Shares in Pledge
Holder's possession belonging to Purchaser, and Pledge Holder shall thereupon
be discharged of all further obligations hereunder, provided, however, that
Pledge Holder shall nevertheless retain said Shares as escrow agent if at the
time of full payment by Purchaser said Shares are still subject to restrictions
under Section 3 hereof.
3. Limitations on Transfer. In addition to any other limitation
on transfer created by applicable securities laws, Purchaser shall not assign,
encumber or dispose of any interest in the Shares while the Shares are subject
to the Company's repurchase option, except as provided in Section 3(h) below.
After any Shares have been released from such repurchase option, Purchaser
shall not assign, encumber or dispose of any interest in such Shares except in
compliance with Sections 3(b) and 3(c) below and applicable securities laws:
(a) Repurchase Option. In the event of the voluntary or
involuntary termination of employment of Purchaser with the Company for any
reason, with or without cause (including death or disability), the Company
shall, upon the date of such termination, have an irrevocable, exclusive option
for a period of 60 days from such date to repurchase all or any portion of the
Shares held by Purchaser as of such date which have not yet been released from
the Company's repurchase option at the original purchase price per Share
specified in Section 1. The option shall be exercised by the Company by
written notice to Purchaser or his executor and, at the Company's option, (i)
by delivery to the Purchaser or his executor with such notice of a check in the
amount of the purchase price for the Shares being purchased, or (ii) in the
event the Purchaser is indebted to the Company, by cancellation by the Company
of an amount of such indebtedness equal to the purchase price for the Shares
being repurchased, or (iii) by a combination of (i) and (ii) so that the
combined payment and cancellation of indebtedness equals such purchase price.
Upon delivery of such notice and payment of the purchase price in any of the
ways described above, the Company shall become the legal and beneficial owner
of the Shares being repurchased and all rights and interest therein or related
thereto, and the Company shall have the right to transfer to its own name the
number of Shares being repurchased by the Company, without further action by
Purchase. One hundred percent (100%) of the Shares purchased by Purchaser
shall initially be subject to the Company's repurchase option as set forth
above. Thereafter, the Shares held by Purchaser shall be released from the
Company's repurchase option under this Section 3(a) as follows (provided in
each case that Purchaser's employment has not been terminated prior to the date
of any such release): 1/8 of the total number of Shares shall be released from
the repurchase option on the 6-month anniversary of the Vesting Commencement
Date (as set forth on the signature page of this Agreement), and an additional
1/48 of the total number of Shares shall be released from the repurchase option
each month thereafter on the Monthly Vesting Date (as set forth on the
signature page of this Agreement), until all Shares are released from the
repurchase option. Fractional shares shall be rounded to the nearest whole
share.
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(b) Right of First Refusal. In the event, at any time
after the date of this Agreement, the Purchaser or his transferee desires to
sell or transfer in any manner the Shares as to which the option provided in
Section 3(a) above is not applicable or has not been exercised, he shall first
offer such Shares for sale to the Company at the same price, and upon the same
terms (or terms as similar as reasonably possible) upon which he is proposing
or is to dispose of said Shares. Said right of first refusal shall be provided
to the Company for a period of thirty (30) days following receipt by the
Company of written notice by the Purchaser of the terms and conditions of said
proposed sale or transfer and the name, address and phone number of each
proposed buyer or transferee. If the Company desires to exercise such right of
first refusal, it shall notify Purchaser in writing within such thirty day
period. In the event the Shares are not disposed of on such terms within
thirty (30) days following lapse of the period of the right of first refusal
provided to the Company or if the Purchaser proposes to change the price or
other terms to make them more favorable to the buyer, they shall once again be
subject to the right of first refusal herein provided.
(c) Involuntary Transfer. In the event, at any time
after the date of this Agreement, of any transfer by operation of law or other
involuntary transfer (including death or divorce) of all or a portion of the
Shares by the record holder thereof, the Company shall have an option to
purchase all of the Shares transferred. Upon such a transfer, the person
acquiring the Shares shall promptly notify the Secretary of the Company of such
transfer. The right to purchase such Shares shall be provided to the Company
for a period of thirty (30) days following receipt by the Company of written
notice by the person acquiring the Shares.
(d) Price for Involuntary Transfer. With respect to any
stock to be transferred pursuant to Section 3(c), the price per Share shall be
a price set by the Board of Directors of the Company that will reflect the
current value of the stock in terms of present earnings and future prospects of
the Company. The Company shall notify Purchaser or his executor of the price
so determined within thirty (30) days after receipt by it of written notice of
the transfer or proposed transfer of Shares. The decision of the Board of
Directors as to the purchase price shall be final.
(e) Assignment. The right of the Company to purchase any
part of the Shares may be assigned in whole or in part to any shareholder or
shareholders of the Company or other persons or organizations.
(f) Restrictions Binding on Transferees. All
transferees of Shares or any interest therein will receive and hold such Shares
or interest subject to the provisions of this Agreement, including, insofar as
applicable, the Company's option to repurchase under Section 3 and the
Company's rights under Section 2. Any sale or transfer of the Company's Shares
shall be void unless the provisions of this Agreement are met.
(g) Termination of Refusal Right. The right of first
refusal granted the Company by Section 3(b) above shall terminate at such time
as a public market exists for the
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Company's capital stock (or any other stock issued to purchasers in exchange
for the Shares purchased under this Agreement) For the purpose of this
Agreement, a "Public Market" shall be deemed to exist if (i) such stock is
listed on a national securities exchange (as that term is used in the
Securities Exchange Act of 1934) or (ii) such stock is traded on the
over-the-counter market and prices are published daily on business days in a
recognized financial journal.
Upon termination of the right of first refusal
imposed by this Agreement and the expiration or exercise of the Company's
repurchase option described in Section 3(a) above, a new certificate or
certificates representing the Shares not repurchased shall be issued, on
request, without the legend referred to in Section 6(b) herein and delivered to
Purchaser.
(h) Exempt Transfers. The restrictions on transfer of
this Section 3 shall not apply to a transfer to Purchaser's ancestors or
descendants or spouse or to a trustee for their benefit, provided that such
transferee shall agree in writing to take such Shares subject to all the terms
of this Agreement, including restrictions on further transfer.
4. Escrow. For purposes of facilitating the enforcement of the
provisions of Section 3 above, Purchaser agrees, immediately upon receipt of
the certificate(s) for his Shares, to deliver such certificate(s), together
with an Assignment Separate from Certificate in the form attached hereto as
Exhibit B executed by Purchaser and by Purchaser's spouse (if required for
transfer), in blank, to the Secretary of the Company, or his designee, to hold
such certificate(s) and Assignment Separate from Certificate in escrow and to
take all such action and to effectuate all such transfers and/or releases as
are in accordance with the terms hereof. Purchaser hereby acknowledges that
the Secretary of the Company, or his designee, is so appointed as the escrow
holder with the foregoing authorities as a material inducement to make this
Agreement and that said appointment is coupled with an interest and is
accordingly irrevocable. Purchaser agrees that said escrow holder shall not be
liable to any party hereof (or to any other party) for any actions or omissions
unless such escrow holder is grossly negligent relative thereto. The escrow
holder may rely upon any letter, notice or other document executed by any
signature purported to be genuine and may resign at any time. Purchaser agrees
that if the Secretary of the Company, or his designee, resigns as escrow holder
for any or no reason, the Board of Directors of the Company shall have the
power to appoint a successor to serve as escrow holder pursuant to the terms of
this Agreement.
5. Investment Representations. In connection with the purchase of
the Shares, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
securities. Purchaser is purchasing these securi-
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ties for investment for his own account only and not with a view to, or for
resale in connection with, any "distribution" thereof within the meaning of the
Securities Act.
(b) Purchaser understands that the securities have not
been registered under the Securities Act by reason of a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Purchaser's investment intent as expressed herein.
(c) Purchaser further acknowledges and understands that
the securities must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. Purchaser further acknowledges and understands that the Company is
under no obligation to register the securities. Purchaser understands that the
certificate evidencing the securities will be imprinted with a legend which
prohibits the transfer of the securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules
144 and 701, each promulgated under the Securities Act, which, in substance,
permit limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof(or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions. In the
event the Company becomes subject to the reporting requirements of Section 13
or l5(d) of the Securities Exchange Act of 1934, the securities exempt under
Rule 701 may be resold by the Purchaser ninety (90) days thereafter, subject to
the satisfaction of certain of the conditions specified by Rule 144, including,
among other things: (i) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934); and (2) in the case
of an affiliate, the availability of certain public information about the
Company, and the amount of securities being sold during any three month period
not exceeding the limitations specified in Rule 144(e), if applicable.
If the Company does not qualify under Rule 701 at the time of
purchase, then the securities may be resold by the Purchaser in certain limited
circumstances subject to the provisions of Rule 144, which requires, among
other things: (l) the availability of certain public information about the
Company; (2) the resale occurring not less than two years after the party has
purchased, and made full payment of (within the meaning of Rule 144), the
securities to be sold; and (3) in the case of an affiliate, or of a
non-affiliate who has held the securities less than three years, the sale being
made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934) and the amount of securities being sold during
any three month period not exceeding the specified limitations stated therein,
if applicable. PURCHASER UNDERSTANDS THAT PAYMENT BY NOTE IS NOT DEEMED TO BE
FULL PAYMENT UNDER RULE 144 UNLESS IT IS SECURED BY ASSETS OTHER THAN THE
SHARES.
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(e) Purchaser further understands that at the time he or
she wishes to sell the securities there may be no public market upon which to
make such a sale, and that, even if such a public market then exists, the
Company may not be satisfying the current public information requirements of
Rule 144 or 701, and that, in such event, Purchaser would be precluded from
selling the securities under Rule 144 or 701 even if the two-year minimum
holding period had been satisfied.
(f) Purchaser further understands that in the event all
of the applicable requirements of Rule 144 or 701 are not satisfied,
registration under the Securities Act, compliance with Regulation A, or some
other registration exemption will be required; and that, notwithstanding the
fact that Rules 144 and 701 are not exclusive, the Staff of the SEC has
expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that
such persons and their respective brokers who participate in such transactions
do so at their own risk.
6. Legends. The certificate or certificates representing the
Shares shall bear the following legends (as well as any legends required by
applicable state and federal corporate and securities laws):
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
OR AN OPINION OF COUNSEL FOR THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT
OF 1933."
(c). "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY."
7. No Employment Rights. Nothing in this Agreement shall affect
in any manner whatsoever the right or power of the Company, or a parent or
subsidiary of the Company, to terminate Purchaser's employment, for any reason,
with or without cause.
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8. Section 83(b) Election. Purchaser understands that Section
83(a) of the Internal Revenue Code of 1986, as amended (the "Code"), taxes as
ordinary income the difference between the amount paid for the Shares and the
fair market value of the Shares as of the date any restrictions on the Shares
lapse. In this context, "restriction" means the right of the Company to buy
back the Shares pursuant to the repurchase option set forth in Section 3(a) of
this Agreement. Purchaser understands that Purchaser may elect to be taxed at
the time the Shares are purchased, rather than when and as the repurchase
option expires, by filing an election under Section 83(b) of the Code with the
Internal Revenue Service within 30 days from the date of purchase. Even if the
fair market value of the Shares at the time of the execution of this Agreement
equals the amount paid for the Shares, the election must be made to avoid tax
treatment under Section 83(a) in the future. The form for making Purchaser's
election is attached hereto. Purchaser understands that his failure to file
such an election in a timely manner may result in adverse tax consequences for
Purchaser. Purchaser further understands that an additional copy of such
election form should be filed with his federal income tax return for the
calendar year in which the date of this Agreement falls.
9. Standoff Agreement. In connection with the initial public
offering of the Company's securities and upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
Purchaser agrees not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any Shares (other than those
included in the registration) without the prior written consent of the Company
or such underwriters, as the case may be, for such period of time (not to
exceed one year) from the effective date of such registration as may be
requested by the Company or such managing underwriters; provided, however, that
the Purchaser need not so agree unless a majority of the Company's officers and
directors and a majority of the holders of at least 5% of the Company's
outstanding securities also agree to be similarly bound.
10. Miscellaneous.
(a) This Agreement may be amended by written agreement
between the Company and Purchaser.
(b) Any notice, demand or request required or permitted
to be given under this Agreement shall be in writing and shall be deemed
sufficient when delivered personally or sent by telecopy or forty-eight (48)
hours after being deposited in the U.S. mail, as certified or registered mail,
with postage prepaid, and addressed, if to the Company, at its principal place
of business, attention the President, and if to Purchaser, at Purchaser's
address as shown on the stock records of the Company.
(c) The rights and benefits of {his Agreement shall inure
to the benefit of, and be enforceable by the Company's successors and assigns.
The rights and obligations of Purchaser under this Agreement may only be
assigned with the prior written consent of the Company.
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(d) Both parties agree to execute any additional
documents necessary to carry out the purposes of this Agreement.
IN WITNESS WHEREO, the parties hereto have executed this Agreement as
of the day and year first set forth above.
RIBOGENE, INC.
By:
---------------------------------------
Title:
------------------------------------
PURCHASER:
1*
------------------------------------------
(Signature)
Address:
7*
8*
Vesting Commencement
10*
Monthly Vesting
11*
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EXHIBIT A
PROMISSORY NOTE
$________________ ________________________, California
_____________________________, 19__
At the times hereinafter stated, for value received, the undersigned promises
to pay RiboGene, Inc., a California corporation (the "Company"), or order, at
its principal office the principal sum of ________ with interest from the date
hereof at a rate of __% per annum, compounded semi-annually, on the unpaid
balance of said principal sum. Said principal and interest shall be due and
payable on _____, 19___.
If the undersigned's employment by or association with the Company is
terminated prior to payment in full of this Note, this Note shall be
immediately due and payable.
Principal and interest are payable in lawful money of the United States of
America. AT ANY TIME, THE PRIVILEGE IS RESERVED TO PAY MORE THAN THE SUM DUE.
Should suit be commenced to collect this Note or any portion thereof, such sum
as the Court may deem reasonable shall be added hereto as attorneys' fees. The
makers and endorsers have severally waived presentment for payment, protest,
notice of protest, and notice of nonpayment of this Note.
This Note, which is full recourse, is secured by a pledge of certain shares of
Common Stock of the Company and is subject to the terms of a Common Stock
Purchase Agreement between the undersigned and the Company of even date
herewith.
___________________________________________
___________________________________________
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PROMISSORY NOTE
$6* ____________________, California
__________________________, 19__
At the times hereinafter stated, for value received, the undersigned
promises to pay to RiboGene, Inc., a California corporation (the"Company"), or
order, at its principal office the principal sum of $6* with interest from the
date hereof at a rate of 15*% per annum, compounded semi-annually, on the
unpaid balance of said principal sum. Said principal and interest shall be due
and payable on 16*.
If the undersigned's employment by or association with the Company is
terminated prior to payment in full of this Note, this Note shall be
immediately due and payable.
Principal and interest are payable in lawful money of the United
States of America. AT ANY TIME, THE PRIVILEGE IS RESERVED TO PAY MORE THAN THE
SUM DUE.
Should suit be commenced to collect this Note or any portion thereof,
such sum as the Court may deem reasonable shall be added hereto as attorneys'
fees. The makers and endorsers have severally waived presentment for payment,
protest, notice of protest, and notice of non-payment of this Note.
This Note, which is full recourse, is secured by a pledge of certain
shares of Common Stock of the Company and is subject to the terms of a Common
Stock Purchase Agreement between the undersigned and the Company of even date
herewith.
___________________________________________
1*
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EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Purchase
Agreement between the undersigned ("Purchaser") and RiboGene, Inc. dated
______, 19___ (the "Agreement"), Purchaser hereby sells, assigns and transfers
unto ______________ (______) shares of the Common Stock of RiboGene, Inc.
standing in Purchaser's name on the books of said corporation represented by
Certificate No. herewith and does hereby irrevocably constitute and appoint
________________ to transfer said stock on the books of the within-named
corporation with full power of substitution in the premises. THIS ASSIGNMENT
MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND THE EXHIBITS THERETO.
Dated:____________________, 19__.
Signature:
___________________________________________
___________________________________________
INSTRUCTION: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its
repurchase option set forth in the Agreement without requiring additional
signatures on the part of Purchaser.
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ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Stock Purchase
Agreement between the undersigned ("Purchaser") and RiboGene, Inc. dated
_____________, 19___ (the "Agreement"), Purchaser hereby sells, assigns and
transfers unto _______________ (_____) shares of the Common Stock of RiboGene,
Inc. standing in Purchaser's name on the books of said corporation represented
by Certificate No. herewith and does hereby irrevocably constitute and appoint
___________________ to transfer said stock on the books of the within-named
corporation with full power of substitution in the premises. THIS ASSIGNMENT
MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND THE EXHIBITS THERETO.
Dated:____________________, 19__.
Signature:
__________________________________
1*
INSTRUCTION: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its
repurchase option set forth in the Agreement without requiring additional
signatures on the part of Purchaser.
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EXHIBIT C
CONSENT OF SPOUSE
I, ___________________________, spouse of ___________________________,
have read and hereby approve the foregoing Agreement. In consideration of the
Company's granting my spouse the right to purchase the Shares as set forth in
the Agreement, I hereby agree to be irrevocably bound by the Agreement and
further agree that any community property or other such interest shall be
similarly bound by the Agreement. I hereby appoint my spouse as my
attorney-in-fact with respect to any amendment or exercise of any rights under
the Agreement.
___________________________________________
Spouse of Purchaser
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CONSENT OF SPOUSE
I, 13*, spouse of 1*, have read and hereby approve the foregoing
Agreement. In consideration of the Company's granting my spouse the right to
purchase the Shares as set forth in the Agreement, I hereby agree to be
irrevocably bound by the Agreement and further agree that any community
property or other such interest shall be similarly bound by the Agreement. I
hereby appoint my spouse as my attorney-in-fact with respect to any amendment
or exercise of any rights under the Agreement.
___________________________________________
Spouse of Purchaser
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ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to the Internal Revenue Code,
to include in his gross income for the current taxable year, the amount of any
compensation taxable to him in connection with his receipt of the property
descried below:.
1. The name, address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME: TAXPAYER: 1* SPOUSE: 13*
ADDRESS: 7*
8*
IDENTIFICATION NO.: TAXPAYER: 9* SPOUSE: 14*
TAXABLE YEAR: 19__
2. The property with respect to which the election is made is described
as follows:
2* shares of the Common Stock (the "Shares"), no par value, of
RiboGene, Inc., a Delaware corporation.
3. The date on which the property was transferred is:
_________________, 19__.
4. The property is subject to the following restrictions
Repurchase option at cost in favor of RiboGene, Inc. upon termination
of taxpayer's employment, consulting, officer or director
relationship.
5. The fair market value at the time of transfer, determined without
regard to any restriction other than a restriction which by its terms
will never lapse, of such property is: $4*
6. The amount (if any) paid for such property: $4*
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
THE UNDERSIGNED UNDERSTANDS THAT THE FOREGOING ELECTION MAY NOT BE REVOKED
EXCEPT WITH THE CONSENT OF THE COMMISSIONER.
Dated:___________, 19__ ___________________________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated:___________, 19__ ___________________________________________
Spouse of Taxpayer
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RECEIPT
RiboGene, Inc. hereby acknowledges receipt of a check for $5*
and a promissory note for $6* (if applicable) given by 1* as consideration for
certificate number 12* for 2* shares of Common Stock of RiboGene, Inc.
Dated:____________________, 19__
RIBOGENE, INC.
By:________________________________________
Title:_____________________________________
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RECEIPT AND CONSENT
The undersigned hereby acknowledges receipt of a photocopy of
certificate number 12* for 2* shares of Common Stock of RiboGene, Inc. (the
"Company").
The undersigned further acknowledges receipt of a copy of Section
260.141.11 of the Rules of the Commissioner of Corporations of the State of
California, which copy is attached to the aforementioned photocopy of the
certificate.
The undersigned further acknowledges that the Secretary of the
Company, or his designee, is acting as escrow holder pursuant to the Stock
Purchase Agreement he/she has previously entered into with the Company. As
escrow holder, the Secretary of the Company, or his designee, holds the
original of the aforementioned certificate issued in the undersigned's name.
Dated:___________, 19__
___________________________________________
1*
19
RIBOGENE, INC.
CHECKLIST
STOCK ISSUANCE FOR
1*
Stock Issuance Code Form received
---------
Documents prepared in word processing
---------
Documents reviewed
---------
Board consent obtained
---------
Securities issued pursuant to valid permit
---------
Stock Certificate prepared
---------
Stock Package sent to Client for signature (see below)
---------
Documents received back from Client
---------
Documents reviewed
---------
83(b) filing made
---------
Copies of documents sent to Client
---------
Documents filed in escrow
---------
STOCK PACKAGE CHECKLIST
Corporate summary updated
---------
Cover Letter (l original)
---------
Stock Purchase Agreement and Consent of Spouse (2 originals)
---------
Assignment Separate from Certificate (2 originals)
---------
Employment or Consulting Agreement (2 originals)
---------
83(b) Election. (4 originals)
---------
Receipt (2 originals)
---------
Stock Certificate (1 original)
---------
Promissory Note (if applicable) (1 original)
---------
Legends to be used:
X '33 Act
---------
X Agreement
---------
X Commissioner's
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ROFR
---------
Articles
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20
RIBOGENE. INC.
MERGE INFORMATION
1* [NAME OF PURCHASER]
2* [NUMBER OF SHARES]
3* [PRICE PER SHARE]
4* [TOTAL PURCHASE PRICE]
5* [AMOUNT OF CHECK]
6* [AMOUNT OF PROMISSORY NOTE]
7* [ADDRESS OF PURCHASER, STREET]
8* [ADDRESS OF PURCHASER, STATE/ZIP]
9* [ID# OF PURCHASER]
10* [VESTING COMMENCEMENT DATE]
11* [MONTHLY VESTING DATE]
12* [CERTIFICATE NUMBER]
13* [NAME OF SPOUSE]
14* [ID# OF SPOUSE]
15* [INTEREST RATE ON NOTE]
16* [DUE DATE OF NOTE]