Exhibit 4.14
RESTRICTED STOCK PURCHASE AGREEMENT
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THIS RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of
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the 24th day of February, 1997, by and between OraPharma, Inc., a Delaware
corporation (the "Corporation"), and ▇▇▇▇▇▇ Investment Holdings I, L.L.C., a
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Connecticut limited liability company ("Founder").
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W I T N E S S E T H:
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WHEREAS, Founder wishes to purchase 335,500 shares of the Corporation's
Common Stock, $.001 par value per share (the "Common Stock"); and
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WHEREAS, the Corporation has agreed to sell Founder 335,500 shares of
Common Stock at a purchase price of $.001 per share (the "Original Cost Per
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Share"), subject to the terms and provisions of this Agreement.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Common Shares" shall mean the issued and outstanding shares of the
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Corporation's Common Stock, at the applicable time.
"Equity Stock" shall have the meaning set forth in Rule 3a11-1 under the
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Securities Exchange Act of 1934, as amended, and any successor statute and the
rules and regulations thereunder, as shall be in effect from time to time.
"Family" shall include any spouse, lineal ancestor or descendant, or
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sibling, any trust for the exclusive benefit of any of the foregoing, or any
limited partnership or limited liability company majority controlled by any of
the foregoing individuals or trusts.
"Founding Members" shall mean Oak Investment Partners VI, Limited
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Partnership and Oak VI Affiliates Fund, Limited Partnership.
"Group" shall mean as to (a) a partnership, any or all of its general or
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limited partners or any "affiliate" thereof (as defined by Rule 405 promulgated
under the Securities Act), (b) a trust, any of the beneficiaries, settlers or
grantors now existing or hereafter arising of, or any Person
under common control with, such trust, (c) a corporation, any of its
stockholders, any subsidiary of such corporation or any corporation which is
under common control with such corporation, or any directors, officers or
employees of such corporation, and (d) a limited liability company, any of its
members.
"New Securities" shall mean any Equity Stock, including, but not limited
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to, shares of Common Stock, any security which is convertible into or
exercisable or exchangeable for Common Stock, or any right, option or warrant to
acquire any Common Stock of the Corporation.
"Person" shall mean and include a natural person, a corporation, a
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partnership, a limited liability company, a trust, an unincorporated
organization, an educational institution, a government or any department, agency
or political subdivision thereof, or any other entity.
"Preferred Shares" shall mean the issued and outstanding shares of the
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Corporation's Series A Preferred Stock, $.001 par value per share.
"Public Offering" shall mean a distribution of New Securities in a firm
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commitment underwritten public offering to the general public pursuant to a
registration statement filed with and declared effective by the Securities and
Exchange Commission pursuant to the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and any
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successor statute and the rules and regulations of the Securities and Exchange
Commission thereunder, as shall be in effect at the applicable time.
"Shares" shall mean the 335,500 shares of Common Stock purchased by Founder
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hereunder.
"Transfer" shall include any direct or indirect sale, assignment, transfer,
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pledge (but not including a pledge in favor of the Corporation), hypothecation
or other disposition of any Shares or of any legal or beneficial interest
therein.
SECTION 2. Sale to Founder of Common Stock. Subject to the terms and
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conditions contained herein, the Corporation hereby sells, transfers and assigns
to Founder, and Founder hereby purchases from the Corporation, the Shares. The
Corporation hereby acknowledges receipt from Founder of payment of the Original
Cost Per Share (or $335.00 in the aggregate).
SECTION 3. Legend on Shares and Notice of Transfer.
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3.1 Restrictive Legends. (a) Each certificate evidencing Shares, and
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each certificate evidencing Shares held by subsequent transferees of any such
certificate, shall (unless otherwise permitted by the provisions of Section 3.2
hereof) be stamped or otherwise imprinted with a legend in substantially the
following form:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW. THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY
EXEMPTION THEREFROM UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW.
(b) Each certificate evidencing Shares, and each certificate
evidencing Shares held by subsequent transferees of any such certificate, shall
also be stamped or otherwise imprinted with a legend in substantially the
following form:
ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS SUBJECT
TO THE TERMS AND CONDITIONS OF A RESTRICTED STOCK PURCHASE
AGREEMENT DATED AS OF FEBRUARY __, 1996, AMONG ORAPHARMA,
INC. AND THE HOLDER OF RECORD OF THIS CERTIFICATE AND NO
SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF SUCH SECURITIES SHALL BE VALID OR EFFECTIVE
EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND UNTIL SUCH
TERMS AND CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF ORAPHARMA, INC.
3.2 Notice of Transfer. (a) Founder, and any other holder of any
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Shares by acceptance thereof, agrees that, prior to any Transfer of any Shares,
such holder will give written notice to the Corporation of such holder's
intention to effect such Transfer and to comply in all other respects with the
provisions of this Section 3.2. Each such notice shall contain (i) a statement
setting forth the intention of said holder's prospective transferee with respect
to its retention or disposition of said Shares; and (ii) unless waived by the
Corporation, an opinion of counsel for said holder (who may be the inside or
staff counsel employed by said holder), as to the necessity or non-necessity for
registration under the Securities Act and applicable state securities laws in
connection with such Transfer and stating the factual and statutory basis relied
upon by counsel. The following provisions shall then apply:
(i) If the proposed Transfer of Shares may be effected without
registration or qualification under the Securities Act and any applicable
state securities laws, then the registered holder of such Shares shall be
entitled to Transfer such Shares in accordance with Section 4 hereof and
the intended method of disposition specified in the statement delivered by
said holder to the Corporation.
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(ii) If the proposed Transfer of such Shares may not be effected
without registration under the Securities Act or registration or
qualification under any applicable state securities laws, the registered
holder of such Shares shall not be entitled to Transfer such Shares
pursuant to Section 4 until the requisite registration or qualification is
effective.
(b) Notwithstanding the provisions of Section 3.2(a), in the case of
a Transfer by a holder to a member of such holder's Family or Group, no such
opinion of counsel shall be necessary; provided, that the transferee agrees in
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writing to be subject to Section 3 hereof to the same extent as if such
transferee were originally a signatory to this Agreement.
(c) Each certificate evidencing the Shares issued upon such Transfer
(and each certificate evidencing any untransferred balance of such Shares) shall
bear the legend set forth in Section 3.1(a) hereof unless (i) in the opinion of
counsel (acceptable to the Corporation) addressed to the Corporation the
registration of future Transfers is not required by the applicable provisions of
the Securities Act or applicable state securities laws; (ii) the Corporation
shall have waived the requirement of such legend; or (iii) in the reasonable
opinion of counsel to the Corporation, such Transfer shall have been made in
connection with an effective registration statement filed pursuant to the
Securities Act or in compliance with the requirements of Rule 144 or Rule 144A
(or any similar or successor rule) promulgated under the Securities Act, and in
compliance with applicable state securities laws.
(d) Each certificate evidencing the Shares issued upon such Transfer
(and each certificate evidencing any untransferred balance of such Shares) shall
bear the legend set forth in Section 3.1(b) hereof, for so long as this
Agreement remains in effect. In the event of the termination of this Agreement,
the holder of Shares may request that the Corporation issue a new certificate
not bearing the legend set forth in Section 3.1(b) hereof.
SECTION 4. Covenants of Founder and Corporation.
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4.1 Prohibited Transfers.
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(a) Founder agrees that it shall not Transfer any of its Shares
without the prior written consent of the holders of a majority of the
outstanding Common Shares held by the Founding Members, except as provided for
in Section 4.2.
(b) Notwithstanding anything to the contrary contained herein,
Founder (and any permitted transferee of Founder) may Transfer all of its, his
or her Shares: (i) if the stockholder is a limited partnership or a trust, to
any member of the Group of which Founder (or such permitted transferee) is a
member; provided, that such transferee shall agree in writing with the Company,
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prior to and as a condition precedent to such Transfer, to be bound by all of
the provisions of this Agreement; (ii) if the stockholder is a corporation, to
any member of its Group; provided, that such transferee shall agree in writing
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with the Company, prior to and as a condition precedent to such Transfer, to be
bound by all of the provisions of this Agreement; (iii) to any member of the
Family of Founder (or such permitted transferee); provided, that such
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transferee shall agree in writing with the Company, prior to and as a condition
precedent to such Transfer, to be bound by all of the provisions of this
Agreement and, provided, further, that the interests in any Family trusts shall
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be non-transferable; and (iv) by will or the laws of descent and distribution,
in which event each such transferee shall be bound by all of the provisions of
this Agreement to the same extent as if such transferee were the deceased
Founder (or permitted transferee).
(c) If requested in writing by the managing underwriters, if any, of
any Public Offering, Founder agrees not to offer, sell, contract to sell or
otherwise dispose of any Shares except as part of such Public Offering within
thirty (30) days before or one hundred and eighty (180) days after the effective
date of the registration statement filed with respect to said offering, and the
Corporation hereby also so agrees; provided, however, that this restriction will
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not apply to transfers permitted under Section 3.2(b) provided such transferee
agrees to be bound by the restriction contained in this Section 4.1(b).
Notwithstanding the foregoing, in the event that Founder shall have accepted an
offer to purchase Offered Shares (as defined below) which have been offered
pursuant to Section 4.2(a), Founder shall not be prohibited from consummating
such sale, provided, that the purchaser agrees to be bound by the restrictions
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contained in this Section 4.1(b).
4.2 Right of First Offer on Dispositions.
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(a) Without limiting Founder's right to Transfer all or any part of
its Shares pursuant to any other provisions of this Agreement, if Founder
desires to Transfer all or any part of its Shares pursuant to this Section 4.2,
Founder shall submit a written offer (the "Offer") to sell such Shares (the
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"Offered Shares") to the Founding Members and the Corporation, which Offer shall
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specify the number of Offered Shares proposed to be sold, the total number of
Shares owned by the Founder, and the terms and conditions, including price, at
which the Shares are being offered.
(b) Each of the Founding Members shall have the right to purchase
that number of Offered Shares, on the same terms and conditions specified in the
Offer, as shall be equal to the number of Offered Shares multiplied by a
fraction, the numerator of which shall be the number of Common Shares then owned
by such Founding Members and the denominator of which shall be the aggregate
number of Common Shares then owned by all of the Founding Members (the "Pro Rata
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Fraction").
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(c) The Corporation shall have the right to purchase all of the
remaining Offered Shares, on the same terms and conditions specified in the
Offer, in excess of the Offered Shares accepted by the Founding Members.
(d) The Founding Members shall have a right of oversubscription such
that, if any Founding Member fails to accept the Offer as to its full Pro Rata
Fraction, it shall have the right to purchase up to the balance of the Offered
Shares not so purchased. Such right of oversubscription may be exercised by such
Founding Member by accepting the offer as to more than its Pro Rata Fraction.
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(e) If a Founding Member desires to purchase all or any part of the
Offered Shares on the same terms and conditions specified in the Offer, such
Founding Member (a "Purchasing Founder") shall communicate in writing to the
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Founder and the Corporation its election to purchase (an "Acceptance"), which
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Acceptance shall state the number of Offered Shares the Purchasing Founder
desires to purchase and shall be delivered in person or mailed to the Founder at
the address set forth in the Offer, with a copy to the Corporation and the other
Founding Member, within 20 days of the date the Offer was made by the Founder
pursuant to Section 4.2(a).
(f) If the Corporation desires to purchase all or any part of the
Offered Shares on the same terms and conditions specified in the Offer, the
Corporation shall deliver its Acceptance to the Founder and the Founding
Members, which Acceptance shall state the number of Offered Shares the
Corporation desires to purchase and shall be delivered in person or mailed to
the Founder at the address set forth in the Offer, with a copy to the Founding
Member, within 20 days of the date the Offer was made by the Founder pursuant to
Section 4.2(a).
(g) If the Corporation and Founding Members elect to purchase all of
the Offered Shares, sale of the Offered Shares pursuant to this Section 4.2
shall be made at the offices of the Corporation on the 45th day following the
expiration of the 20-day period described above (or if such 45th day is not a
business day, then on the next succeeding business day). Such sales shall be
effected by the Founder's delivery to each Purchasing Founder or the
Corporation, as the case may be, of a certificate or certificates evidencing the
Offered Shares to be purchased by it, him or her, duly endorsed for transfer to
the Purchasing Founder or the Corporation, as the case may be, which Offered
Shares shall be delivered free and clear of all liens, charges, claims and
encumbrances of any nature whatsoever, against payment to the Founder of the
purchase price therefor by the Corporation or such Purchasing Founder, as the
case may be. Payment for the Offered Shares shall be made as provided in the
Offer or by wire transfer or certified check.
(h) If the Purchasing Founders and the Corporation do not elect to
purchase all of the Offered Shares, then the Offered Shares may be sold by the
Founder at any time within 150 days after the date the Offer was made by the
Founder pursuant to Section 4.2(a). Any such sale shall be upon terms and
conditions, including price, not less favorable to the Founder than those
specified in the Offer. Any Offered Shares not sold within such 150-day period
shall continue to be subject to the requirements of a prior offer pursuant to
this Section 4.2.
SECTION 5. Representations.
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5.1 Representations of Founder. In connection with Founder's
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purchase of the Shares, Founder hereby represents and warrants to the
Corporation as follows:
(a) Investment Intent; Capacity to Protect Interests. Founder is
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purchasing the Shares solely for its own account for investment and not with a
view to or for sale in connection with any distribution of the Shares or any
portion thereof and not with any present intention of selling, offering to sell
or otherwise disposing of or distributing the Shares or any portion thereof
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in any transaction other than a transaction exempt from registration under the
Securities Act. Founder also represents that the entire legal and beneficial
interest of the Shares is being purchased, and will be held, for its account
only, and neither in whole or in part for any other person.
(b) Restricted Securities. Founder understands and acknowledges that
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the sale of the Shares has not been registered under the Securities Act; that
the Shares must be held indefinitely unless subsequently registered under the
Securities Act or an exemption from such registration is available; and that the
Corporation is under no obligation to register the Shares.
(c) Disposition under Rule 144. Founder understands that the Shares
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are restricted securities within the meaning of Rule 144 promulgated under the
Securities Act; that the exemption from registration under Rule 144 will not be
available in any event for at least two years from the date of purchase of any
payment for the Shares, and even then will not be available unless (i) a public
trading market then exists for the Shares, (ii) adequate information concerning
the Corporation is then available to the public, and (iii) other terms and
conditions of Rule 144 are complied with; and that any sale of the Shares may be
made only in limited amounts in accordance with such terms and conditions.
(d) Accredited Investor. Founder is an "accredited investor", as
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defined in Rule 501 under the Securities Act.
5.2 Representations of the Corporation. The Corporation represents
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to Founder that:
(a) The execution, delivery and performance by the Corporation of
this Agreement and all transactions contemplated by this Agreement have been
duly authorized by all action required by law, its Certificate of Incorporation,
its Bylaws or otherwise.
(b) This Agreement has been duly executed and delivered by the
Corporation and constitutes the legal, valid and binding obligation of the
Corporation enforceable against it in accordance with its terms.
SECTION 6. Withholding. Upon the request of the Corporation, Founder shall
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promptly pay to the Corporation, or make arrangements satisfactory to the
Corporation regarding payment of, any Federal, state or local taxes of any kind
required by law to be withheld with respect to the Shares (or any distributions
of other securities or property (including cash) thereon or issued in
replacement thereof).
SECTION 7. Remedies. In case any one or more of the covenants and/or
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agreements set forth in this Agreement shall have been breached by any party
hereto, the party entitled to the benefit of such covenants or agreements may
proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including, but not limited to, (a) an action for damages as a
result of any such breach, (b) an action for specific performance of any such
covenant or agreement contained in this Agreement, and/or (c) a temporary or
permanent injunction, in any
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case without showing any actual damage. The rights, power and remedies of the
parties under this Agreement are cumulative and not exclusive of any other
agreement or law. No single or partial assertion or exercise of any right, power
or remedy of a party hereunder shall preclude any other or further assertion or
exercise thereof. Any purported Transfer in violation of the provisions of this
Agreement shall be null and void ab initio.
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SECTION 8. Successors and Assigns. Except as otherwise expressly provided
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herein, this Agreement shall bind and inure to the benefit of the Corporation,
Founder, the respective successors or heirs, distributees and personal
representatives and permitted assigns of the Corporation and Founder, and each
other person who shall properly become a registered holder of any Shares that
have not theretofore been sold to the public pursuant to a registration
statement under the Securities Act or Rule 144 or Rule 144A (or any similar or
successor rule).
SECTION 9. Entire Agreement. This Agreement contains the entire agreement
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among the parties with respect to the subject matter hereof and supersedes other
prior and contemporaneous arrangements or understandings with respect thereto.
SECTION 10. Notices. All notices, consents and other communications under
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this Agreement shall be in writing and shall be deemed to have been duly given
(a) when delivered by hand, (b) one (1) business day after the business day of
transmission, if sent by telex or telecopier (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt requested, or (c) one
(1) business day after the business day of deposit with the carrier, if sent by
Express Mail, Federal Express or other express delivery service (receipt
requested), in each case to the appropriate addresses, telex numbers and
telecopier numbers set forth below (or to such other addresses or telecopy
numbers as a party may designate as to itself by notice to the other parties):
(a) If to Founder:
▇▇▇▇▇▇ Investment Holdings, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Managing Member
Telecopier No.:
(▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Corporation:
OraPharma, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tischman ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
SECTION 11. Changes. The terms and provisions of this Agreement may not be
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modified or amended, or any of the provisions hereof waived, temporarily or
permanently, without the prior written consent of each of the parties hereto.
SECTION 12. Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 13. Headings. The benefits of the various sections of this
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Agreements have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 14. Nouns and Pronouns. Whenever the context may require, any
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pronouns used herein shall include the corresponding masculine feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 15. Severability. Any provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability. Such
prohibition or unenforceability in any one jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 16. Governing Law; Jurisdiction. This Agreement and (unless
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otherwise provided) all amendments hereof and waivers and consents hereunder
shall be governed by the internal law of the State of New Jersey, without regard
to the conflicts of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
WITNESS ORAPHARMA, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
WITNESS ▇▇▇▇▇▇ INVESTMENT HOLDINGS I, L.L.C.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, Managing Member
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