Exhibit 10.12
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (this " Agreement" ) is entered into as of the 4 th day of April, 2006, by and between Aegerion Pharmaceuticals, Inc., a Delaware corporation (the " Corporation" ), and Dr. Antonio M. Gotto, Jr., M.D., D.Phil (the " Equity Participant" ). W I T N E S S E T H:
WHEREAS, as consideration for serving as a member of the Board of Directors of Corporation and as Ex-Officio of the Corporation' s Scientific Advisory Board and further for providing other consulting services to the Corporation, the Corporation desires to issue to the Equity Participant, and the Equity Participant desires to purchase from the Corporation, shares of the Corporation' s Common Stock, $0.001 par value per share (the " Common Stock" ). 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 .
As used in this Agreement, the following terms shall have the following respective meanings:
" Business Relationship" shall mean service to the Corporation or its successor in the capacity of an independent contractor, consultant or member of the Board of Directors of the Corporation. " Cause" shall mean (i) dishonesty, willful or gross misconduct, or illegal conduct by the Equity Participant in connection with the Equity Participant' s Business Relationship which in the Corporation' s reasonable judgment may result in damage to the business or reputation of the Corporation, (ii) the Equity Participant' s conviction of, or plea of guilty or nolo contendere to, a charge of commission of a felony (exclusive of any felony relating to negligent operation of a motor vehicle), and (iii) a material breach by the Equity Participant of this Agreement, the Consulting Agreement or any other agreement between the Corporation and the Equity Participant; provided, however, in the case of this clause (iii), the Corporation shall be required to give the Equity Participant thirty (30) calendar days prior written notice of its intention to terminate the Consulting Agreement for Cause and the Equity Participant shall have the opportunity during such thirty (30) day period to cure such event if such event is capable of being cured; provided, further, that in the event that the Equity Participant terminates his Business Relationship during such thirty (30) day period for any reason, such termination shall be considered a termination for Cause. " Code" shall mean the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
RESTRICTED STOCK PURCHASE AGREEMENT
" Commission" shall mean the Securities and Exchange Commission or any other Federal agency administering the Securities Act at the applicable time.
" Consideration" shall have the meaning set forth in Section 2.1 .
" Consulting Agreement" shall mean the Consulting Agreement dated as of the date hereof, by and between the Corporation and the Equity Participant.
" Equity Stock" shall have the meaning set forth in Rule 3a11-1 under the 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.
" Fair Market Value" shall mean the fair market value, with respect to any Share, as determined by the Board of Directors of the Corporation. " Family" shall mean any spouse, lineal ancestor or descendant, or sibling or any trust for the exclusive benefit of any of the foregoing and/or the Equity Participant.
" Group" shall mean as to (a) a partnership, any or all of its general or 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.
" Initial Public Offering" shall mean the Corporation' s initial distribution of New Securities in an underwritten Public Offering to the general public pursuant to a registration statement filed with and declared effective by the Commission pursuant to the Securities Act at a price per New Security of not less than the product of three (3) and the original purchase price per share for the Corporation' s initial round of Series A Preferred Stock (as adjusted for stock splits, stock dividends or similar recapitalizations) and resulting in net proceeds to the Corporation of not less than $40 million.
" IRS" shall mean the Internal Revenue Service. " New Securities" shall mean any Equity Stock, including, but not limited 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.
" Original Cost Per Share" shall have the meaning set forth in Section 2.1 .
" Person" shall mean and include a natural person, a corporation, a 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, at the applicable time, all issued and outstanding shares, if any, of the Corporation' s preferred stock.
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RESTRICTED STOCK PURCHASE AGREEMENT
" Public Offering" shall mean a distribution of New Securities in a firm commitment underwritten public offering to the general public pursuant to a registration statement filed with and declared effective by the Commission pursuant to the Securities Act. " Released Shares" shall mean Shares that are not Unreleased Shares. " Securities Act" shall mean the Securities Act of 1933, as amended, and any successor statute and the rules and regulations of the Commission thereunder, as shall be in effect at the applicable time.
" Shares" shall have the meaning set forth in Section 2.1 .
" Transfer" shall include any direct or indirect sale, assignment, transfer, 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.
" Unreleased Shares" means Shares that, in accordance with Sections 3.1 , 3.3 , and 3.3 , have not been released and are subject to repurchase by the Corporation at the Original Cost Per Share pursuant to Section 4.1 .
SECTION 2. Issuance of Common Stock . 2.1 Subject to the terms and conditions contained herein, the Corporation hereby sells to the Equity Participant, and the Equity Participant hereby purchases from the Corporation, 50,000 shares of Common Stock (the " Shares" ) for a purchase price of $.001 per share (the " Original Cost Per Share" ) or the aggregate purchase price of $50.00 (the " Consideration" ). Simultaneously with execution and delivery hereof, the Equity Participant is delivering to the Corporation a check or wire transfer of funds in the aggregate amount of the Consideration. 2.2 The Equity Participant, in his sole discretion, may make an effective election with the IRS under Section 83(b) of the Code and the regulations promulgated thereunder in the form of Exhibit A attached hereto. The Equity Participant understands that under applicable law such election must be filed with the IRS no later than thirty (30) days after any acquisition of the Shares to be effective. If the Equity Participant files an effective election, the excess of the fair value of the Shares (which the IRS may assert is different from the fair value determined by the Equity Participant) covered by such election over the amount paid by the Equity Participant for the Shares shall be treated as ordinary income received by the Equity Participant. If the Equity Participant does not file an effective election, future appreciation on the Shares will generally be taxable as ordinary income when the right of repurchase lapses as to such Shares pursuant to this Agreement. The foregoing is merely a brief summary of complex tax regulations, and therefore, the Equity Participant is strongly advised to consult with his own tax advisors.
2.3 In the event that the Equity Participant files the election referred to in Section 2.2 , the Equity Participant will provide the Corporation with a copy of such election as filed.
2.4 The Corporation will reimburse the Equity Participant in an amount not to exceed $10,000 for Equity Participant' s federal income, state income (net of any federal deduction) and self employment tax (net of any federal or, if applicable, state income tax deduction) incurred on
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RESTRICTED STOCK PURCHASE AGREEMENT
account of the income the Equity Participant recognizes in 2006 for tax purposes with respect to the issuance of the Shares and the election referred to in Section 2.2 (if made), calculated using the Equity Participant' s applicable statutory marginal tax rates on such income after taking into account all other income in 2006 set forth on Equity Participant' s 2006 tax return, and determined without regard to phase-outs of tax credits and deductions or other adjustments that may impact the Equity Participant' s true effective marginal tax rate.
SECTION 3. Repurchase Rights related to Common Stock .
3.1 The Shares shall be released in accordance with the following and as detailed on Schedule A attached hereto: (a) twenty-five percent (25%) of the Shares on the date hereof; and (b) the balance of the Shares in a series of eight (8) successive quarterly installments over the twenty-four (24) month period measured from the first anniversary of the date hereof. In no event shall any additional Shares be released after the Equity Participant' s cessation of service, except as expressly provided in Sections 3.2 and 3.3 .
3.2 In the event the Equity Participant' s Business Relationship is terminated by the Corporation without Cause in relation to the sale or other disposition of all or substantially all of the Corporation' s assets or a change in ownership in a single transaction or series of related transactions of fifty percent (50%) or more of the Corporation' s stock, the Shares which remain unreleased at the time of termination, after the release of those Shares pursuant to Section 3.1, shall be released on the date of such termination and become Released Shares; provided, however that this provision shall not apply in the event of any equity financings of the Corporation.
3.3 In the event the Equity Participant' s Business Relationship is terminated by the Corporation without Cause, twenty-five percent (25%) of the Unreleased Shares on the date of such termination shall be released on the date of such termination and become Released Shares.
SECTION 4. Termination of Relationship . 4.1 In the event that the Equity Participant' s Business Relationship ceases for any reason (with or without Cause), the Corporation shall have the right to purchase from the Equity Participant, and if the Corporation exercises its option pursuant to this Section 4 , the Equity Participant shall sell to the Corporation upon the exercise of such right, (1) all of the Equity Participant' s Unreleased Shares (rounded up to the nearest whole Share) at the Original Cost Per Share, and (2) all of the Equity Participant' s Released Shares (rounded up to the nearest whole Share) at the Fair Market Value per Share; provided, however, that if the Equity Participant' s Business Relationship is terminated by the Corporation for Cause, the purchase price for any Released Shares shall be the Original Cost Per Share. 4.2 The number of Shares subject to purchase pursuant to Section 4.1 shall be adjusted to give effect to any stock dividend, or other distribution of stock made on or in respect of such Shares, or any subdivision, combination or reclassification of the outstanding capital stock of the Corporation or received in exchange for the Shares.
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RESTRICTED STOCK PURCHASE AGREEMENT
4.3 In order to exercise the option to purchase the Equity Participant' s Shares under this Section 4 , the Corporation shall deliver a written notice to the Equity Participant (the " Share Repurchase Notice" ), indicating its election to purchase any or all of the Shares and specifying the number of Unreleased Shares and Released Shares, if applicable, which the Corporation elects to purchase and the purchase price therefor, within ninety (90) days after the Equity Participant' s termination. 4.4 The repurchase of Shares hereunder shall be made on a date within sixty (60) days of the delivery of the Share Repurchase Notice, by delivery of payment to the Equity Participant, by check or wire transfer, against receipt of one or more certificates, properly endorsed, evidencing the Equity Participant' s Unreleased and/or Released Shares, if applicable, to be so purchased. If the repurchase is not consummated by such date, the Corporation may deliver to the Equity Participant by check or wire transfer the applicable repurchase price for the Unreleased Shares and/or Released Shares, if applicable, to be repurchased and may cancel the certificates evidencing such Unreleased Shares and/or Released Shares, if applicable, on the books and records of the Corporation.
4.5 Notwithstanding anything to the contrary contained in this Agreement, all repurchases of Shares by the Corporation shall be subject to applicable restrictions contained in federal law, the Delaware General Corporation Law and in the Corporation' s debt and equity financing agreements. Notwithstanding anything to the contrary contained in this Agreement, if any such restrictions prohibit or otherwise delay the repurchase of any Shares thereunder which the Corporation is otherwise entitled to make, the Corporation may make such repurchases within sixty (60) days of the date that it is permitted to do so under such restrictions.
4.6 In the event that any Shares are the subject of repurchase by the Corporation pursuant to this Section 4 , the Equity Participant and his successors, assigns or representatives will take all steps necessary and desirable to obtain all required third-party, governmental and regulatory consents and approvals and take all other actions necessary and desirable to facilitate consummation of such repurchase(s) in a timely manner as are requested by the Corporation.
SECTION 5. Legend on Shares and Notice of Transfer . 5.1 Restrictive Legends . (a) Each certificate evidencing Shares, and each certificate evidencing Shares held by subsequent transferees of any such certificate, shall (unless otherwise permitted by the provisions of Section 5.2 ) be stamped or otherwise imprinted with a legend in substantially the following form: 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.
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RESTRICTED STOCK PURCHASE AGREEMENT
(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 AGRE ...
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