Exhibit 10.7
RESTRICTED STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of this 23rd day of June, 2000, as
amended, by and between ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Purchaser") and Exact
Laboratories, Inc. (the "Company"), a Delaware corporation.
1. SALE. The Company hereby sells and issues to the Purchaser 71,111
shares (the "Shares") of Common Stock, $.01 par value, of the Company, for a
purchase price of $399,999.38 (the "Purchase Price"), to be paid in cash or by
check payable to the order of the Company. This sale is made pursuant and
subject to the following terms and conditions.
2. RECEIPT OF PURCHASE PRICE AND SHARES. The Company hereby
acknowledges receipt of (i) cash in the amount of $100,000 and (ii) a promissory
note dated as of the date hereof in the principal amount of $299,999.38, as
payment in full of the Purchase Price of the Shares, in accordance with Section
1. The Purchaser hereby acknowledges receipt of a stock certificate representing
the Shares.
3. COMPANY PURCHASE OPTION.
3.1 OPTION TO THE COMPANY TO PURCHASE THE SHARES. The
Purchaser hereby grants to the Company an irrevocable right and option (the
"Purchase Option") to purchase all or any portion of the Shares on the terms and
conditions set forth in this Agreement.
At any time within (90) ninety days after the Purchaser ceases to be an
employee of the Company or a subsidiary of the Company, subject to the
provisions of Section 3.2 in the event of a termination for any reason other
than Cause (as defined in Section 3.2), the Company shall have the right to
exercise the Purchase Option and to purchase from the Purchaser (or his estate,
it being understood that Shares released from the Purchase Option under this
Agreement shall pass upon the Purchaser's death to the Purchaser's estate), for
an amount per Share equal to the Exercise Price (the "Option Price"), up to that
fraction of the Shares specified in the following table:
IF CESSATION OF EMPLOYMENT OCCURS % OF SHARES SUBJECT TO PURCHASE OPTION
Before May 1, 2001 100%
On or after May 1, 2001 80%
On the 1st day of each calendar month Percentage of shares subject to Purchase
thereafter Option on the 1st day of the prior
calendar month less 1.666%
On or after May 1, 2005 None
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3.2 EARLY TERMINATION OF PURCHASE OPTION. Notwithstanding the
foregoing, in the event the Purchaser continues to be employed by the Company on
the earlier to occur of the following events prior to five years from the date
of this Agreement:
(A) In the case of a Business Event as defined in subsection (B),
to the extent there are Shares subject to the Company's Purchase Option, all
Shares shall vest as if the vesting date was one year prior to the date set
forth in Section 3.1 hereof and the Purchase Option shall expire with respect as
to such Shares which become vested pursuant hereto. It is the intention of the
parties that the acceleration of vesting provided by this paragraph shall not in
any way suspend the operation of the vesting schedule set forth in Section 3.1,
but rather the effect of such acceleration shall be to compensate the Purchaser
by deeming him to have (for purposes of determining the number of Shares subject
to the Company's Purchase Option only) an additional year of service with the
Company from and after the Business Event and the Company shall have no further
right and option to repurchase all or any portion of those Shares which become
vested pursuant hereto.
(B) If in conjunction with the closing of (A) the sale by the
Company of all or substantially all of its assets, or (B) the merger or
consolidation of the Company with or into another entity in a transaction where
the shares of the Company's capital stock outstanding immediately prior to the
closing of such merger or consolidation represent or are converted into or
exchanged for shares that represent less than a majority of the shares of
capital stock of the resulting or surviving entity outstanding immediately after
the closing of such merger or consolidation (each of the foregoing being
referred to as "Business Event") and any of the following events, the Company's
Purchase Option shall immediately expire as to all remaining Shares:
(i) he termination by the Company of the Purchaser's
employment with the Company for any reason other than
Cause, for purposes of this agreement "Cause" shall mean
(A) the Purchaser's gross negligence in the performance
of his duties as an employee and officer of the Company
(as determined by a majority of the directors of the
Company other than, if applicable, the Purchaser) or (B)
criminal misconduct by the Purchaser in connection with
the performance of his duties as an employee and officer
of the Company; or
(ii) the Purchaser suffers a substantial diminution in job
responsibility or a substantial reduction in
compensation; or
(iii) the Company moves the Purchaser's place of employment
more than 60 miles from Company's current office
location in Maynard, Massachusetts. Notwithstanding the
foregoing, the issuance by the Company of its capital
stock in an equity financing, either in a private or
public transaction, shall not constitute a Business
Event.
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3.3 EXERCISE OF OPTION. The Purchase Option shall be exercised
by written notice delivered or mailed by the Company to the Purchaser (or his
estate), accompanied by payment by check for the Option Price for the Shares
being repurchased.
3.4 DELIVERY OF REPURCHASED SHARES. The Purchaser agrees that
he (or his executors or administrators or other legal representative, as the
case may be) shall promptly deliver to the Company, at the Company's principal
office, certificates for any Shares which are repurchased by the Company
pursuant to this Section 3, and that such certificates shall be duly endorsed in
blank for transfer to the Company; provided, however, that if the Purchaser
fails to deliver such certificates to the Company on or before the fifth day
following delivery to the Purchaser by the Company of the notice and payment
required by subsection 3.3, the Shares repurchased shall be deemed to be
transferred to the Company on such date, and all rights of the Purchaser with
respect to such Shares shall thereupon cease.
3.5 SHARES NOT REPURCHASED. In the event the Company declines
in writing to repurchase any or all of the Shares or does not exercise its
option for repurchase as provided herein, the Shares shall remain the property
of the Purchaser.
4. ADDITIONAL SHARES. If, from time to time during the term of the
Purchase Option, there is any stock dividend or liquidating dividend of cash
and/or property, stock split, subdivision, or other change in the character or
amount of any of the outstanding Common Stock of the Company, then in such event
any and all new, substituted or additional securities or other property to which
the Purchaser is entitled by reason of his ownership of the Shares shall be
immediately subject to the Purchase Option and be included in the term "Shares"
for all purposes of the Purchase Option with the same force and effect as the
Shares presently subject thereto. After each such event, the Option Price per
share upon exercise of the Purchase Option shall be appropriately adjusted.
5. INVESTMENT REPRESENTATIONS. The Purchaser represents,
warrants and covenants that:
(i) The Purchaser is repurchasing the Shares for his
own account for investment only, and not with a view to, or
for sale in connection with, any distribution of the Shares in
violation of the Securities Act of 1933 (the "Securities
Act"), or any rule or regulation under the Securities Act.
(ii) The Purchaser is aware of the Company's business
affairs and financial condition, and has had such opportunity
as he has deemed adequate to obtain from representatives of
the Company such information as is necessary to permit the
Purchaser to evaluate the merits and risks of his investment
in the Company.
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(iii) The Purchaser can afford a complete loss of the
value of the Shares and is able to bear the economic risk of
holding the Shares for an indefinite period.
(iv) The Purchaser has sufficient experience in
business, financial and investment matters to be able to
evaluate the risks involved in the purchase of the Shares and
to make an informed investment decision with respect to such
purchase.
(v) The Purchaser understands that: (A) the Shares
will not be registered under the Securities Act and are
"restricted securities" within the meaning of Rule 144 and/or
Rule 701 under the Securities Act; (B) the Shares cannot be
sold, transferred or otherwise disposed of unless they are
subsequently registered under the Securities Act or an
exemption from registration is then available; (C) in any
event, the exemption from registration under Rule 144 or
otherwise will not be available for at least two years and
even then may not be available unless a public market then
exists for the Common Stock, adequate information concerning
the Company is available to the public, and other terms and
conditions of Rule 144 are complied with, and (D) there is now
no registration statement on file with the Securities and
Exchange Commission with respect to any stock of the Company
and the Company has no obligation or current intention to
register the Shares under the Securities Act.
6. LEGENDS.
6.1 RESTRICTED STOCK AGREEMENT LEGEND. All certificates
representing shares which are subject to the Purchase Option shall have affixed
thereto a legend substantially in the following form:
"The securities represented by this certificate are subject to
certain restrictions on transfer and to certain rights of the
Company to purchase such securities as set forth in a
Restricted Stock Purchase Agreement between the corporation
and the registered holder (or his predecessor in interest), a
copy of which is available for inspection without charge at
the principal office of the corporation."
7. RESTRICTIONS ON TRANSFER. Except as otherwise provided in this
Section 7, the Purchaser shall not sell, assign, transfer, pledge, hypothecate
or otherwise dispose of, by operation of law or otherwise (collectively
"transfer") any of the Shares, or any interest therein, unless and until such
Shares are no longer subject to the Company's Purchase Option. Notwithstanding
the foregoing the Purchaser may transfer Shares by gift, provided that such
Shares shall remain subject to this Agreement (including without limitation the
Purchase Option and the restrictions on transfer set forth herein), and such
permitted transferee shall, as a condition to such transfer, deliver to the
Company a written instrument confirming that such transferee shall be bounded by
all of the terms and conditions of this Agreement.
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8. EFFECT OF PROHIBITED TRANSFER. The Company shall not be required (a)
to transfer on its books any of the Shares which shall have been sold or
transferred in violation of any of the provisions set forth in this Agreement,
or (b) to treat as owner of such Shares or to pay dividends to any transferee to
whom any such Shares shall have been so transferred.
9. RIGHT OF STOCKHOLDER. Subject to the provision of Sections 7 and 8
above, the Purchaser shall, during the term of this Agreement, exercise all
rights and privileges of a stockholder of the Company with respect to the
Shares.
10. FURTHER INSTRUMENTS AND ACTIONS. The parties agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
11. NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be deemed effectively given upon personal delivery or upon
deposit with the United States Post Office, by registered or certified mail,
addressed to each other party hereto at his address hereinafter shown below his
signature or at such other address as such party may designate by ten (10) days
advance written notice to all other parties hereto.
12. EMPLOYMENT STATUS. Nothing contained in this Agreement shall be
construed as giving the Purchaser any right to continue employment with the
Company.
13. WITHHOLDING TAXES. The Purchaser acknowledges and agrees that any
tax consequences of the purchase, exercise and sale of Shares will be borne by
Purchaser and not by the Company and that the Company has the right to deduct
from payments of any kind otherwise due to the Purchaser any federal, state or
local taxes of any kind required by law to be withheld with respect to the
Shares.
14. MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
14.2 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Delaware as such laws are applied to
contracts entered into and performed in such state.
14.3 SUCCESSOR AND ASSIGNS. Except as otherwise expressly provided
in this Agreement, the provisions hereto shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto.
14.4 AMENDMENTS. The terms and provisions of this Agreement may not
be modified or amended except in a writing executed by the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EXACT LABORATORIES, INC. PURCHASER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman