Exhibit 10.10


 


IKARIA HOLDINGS, INC.


 


STOCK PURCHASE AGREEMENT


 


STOCK PURCHASE AGREEMENT,
dated as of [·], 2007 (the “Agreement”), by and
between Ikaria Holdings, Inc., a Delware corporation (the “Company”), and [·] (“Purchaser”).


 


Recitals


 


WHEREAS, pursuant to the
Ikaria Holdings, Inc. Equity Participation Plan (the “Equity Participation Plan”),
the Company desires to sell to Purchaser, and Purchaser desires to purchase,
shares of the Company’s non-voting common stock, par value $0.01 per share (the
“Common Stock”);
and


 


WHEREAS, as a condition to
such sale and purchase, Purchaser will become a party to the Company’s Common
Stockholders Agreement by executing a Joinder Agreement and a counterpart
signature page to the Company’s Common Stockholders Agreement (such
Joinder Agreement and counterpart signature page to the Company’s Common
Stockholders Agreement being referred to collectively herein as the “Stockholders Agreement”).


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants set forth in this
Agreement, and for good and valuable consideration, receipt of which is hereby
acknowledged, the Company and Purchaser, intending to be legally bound, hereby
agree as follows:


 


1.                                            Purchase of
Shares.


 


(a)                                  Sale and
Purchase.  On the
terms and conditions set forth in this Agreement, the Company agrees to sell to
Purchaser, and Purchaser agrees to purchase from the Company, [·] shares of Common Stock (the “Shares”) pursuant to
the Equity Participation Plan.  Upon and
following an “Initial Public Offering” (as such term is defined in the Company’s
Amended and Restated Certificate of Incorporation as may be amended from time
to time) the Shares shall automatically become shares of the Company’s voting
common stock, par value $0.01 per share, without any further action on the part
of the Company or Purchaser.


 


(b)                                 Consideration.   The Purchaser agrees to pay for the Shares
an aggregate purchase price of $[·] (the “Purchase Price”).


 


2.                                            Closing of the
Purchase.


 


(a)                                  Closing.  The closing of the transaction contemplated
by this Agreement (the “Closing”)
shall occur on a date selected by the Company not later than thirty days
following the date of this Agreement (the “Closing Date”) at the offices of Fried,
Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York,
New York.  Unless the Company shall
permit otherwise, this Agreement shall cease to be of force or effect, and the
Purchaser shall have no rights hereunder, if the Purchaser has not delivered
the Purchase Price to the Company on or prior to the date so selected by the
Company.


 





















 


(b)                                 Deliveries.   At the Closing, the Company shall deliver to
Purchaser a certificate representing the Shares and a copy of the Stockholders
Agreement executed by the Company, New Mountain Partners II, L.P., New Mountain
Affiliated Investors II, L.P. and Allegheny New Mountain Partners, L.P. at or
prior to the Closing, Purchaser shall deliver to the Company a copy of the
Stockholders Agreement executed by the Purchaser and, where applicable, his or
her spouse, any undated stock power referred to in the Stockholders Agreement
and a good check or wire transfer of funds in an amount equal to the Purchase
Price.


 


(c)                                  Conditions to
Closing.


 


i.                                          Conditions to
Both Parties’ Obligations.  The
obligations of the parties to consummate the transactions contemplated by this
Agreement are subject to the fulfillment prior to or at the Closing of the
condition (which may be waived by the parties in accordance herewith) that, on
the Closing Date, there shall not be in effect any order issued by a court of
competent jurisdiction restraining or prohibiting consummation of the
transactions contemplated by this Agreement.


 


ii.                                       Conditions to
Company’s Obligations at Closing.  Each and every obligation of the Company to
be performed at the Closing shall be subject to the conditions precedent that
the representations made by Purchaser in this Agreement shall be accurate in
all material respects on and as of the Closing Date with the same effect as
though such representations had been made or given on or as of the Closing Date
and that Purchaser shall have performed all covenants required to be performed
at or prior to the Closing.


 


iii.                                    Conditions to
Purchaser’s Obligations at Closing.  Each and every obligation of Purchaser to be
performed at the Closing shall be subject to the conditions precedent that the
representations made by the Company in this Agreement shall be accurate in all
material respects on and as of the Closing Date with the same effect as though
such representations had been made or given on or as of the Closing Date and
that the Company shall have performed all covenants required to be performed at
or prior to the Closing.


 


(d)                                 Survival.  All representations made by the Company and
Purchaser shall survive the Closing.


 


3.                                            Representations
and Warranties of Purchaser.  Purchaser represents and warrants to the
Company as follows:


 


(a)                                  Purchaser has
the legal capacity to execute, deliver and perform this Agreement and the
Stockholders Agreement and to consummate the transactions contemplated
hereby.  This Agreement and, when
executed and delivered, the Stockholders Agreement, constitute valid and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with the terms hereof and thereof, except to the extent that such
enforceability may be limited by bankruptcy, insolvency or other similar laws
or by general equitable principles.


 


(b)                                 Purchaser’s
principal address is listed below Purchaser’s signature on the signature page hereto.


 


(c)                                  Purchaser is
acquiring the Shares for investment purposes only for Purchaser’s own account,
and not as a nominee or agent, and not with a view to the resale or 


 


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distribution of all or any part of the
Shares.  Purchaser is prepared to hold
the Shares for an indefinite period and has no present intention of selling,
granting any participation in, or otherwise distributing any of the
Shares.  Purchaser does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant a participating interest in, any of the Shares.


 


(d)                                 Purchaser is
knowledgeable about the Company, and Purchaser has sufficient knowledge and
experience in financial and business matters in general that Purchaser is
capable of evaluating the Company and the business thereof and the risk and
merits of investment in the Company and of making an informed investment
decision thereon.


 


(e)                                  Purchaser has
been furnished with, and has had access to, such information as Purchaser
considers necessary or appropriate for deciding whether to invest in the
Shares, including a copy of the Equity Participation Plan, and Purchaser has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the purchase of the Shares.


 


(f)                                    Purchaser has
been informed, understands and acknowledges that Purchaser’s investment in the
Shares is a speculative investment and involves a high degree of risk and that
the amount realized on such investment may be less than the amount
invested.  In evaluating Purchaser’s
investment in the Shares, Purchaser consulted with investment, legal and tax
advisors and concluded that such investment is not inconsistent with and is
appropriate in light of Purchaser’s overall investment objectives, financial
condition and liquidity requirements. 
Purchaser is familiar with the nature of and risks attendant to an
investment of the type contemplated hereby and the tax aspects of an investment
of such type, is financially and otherwise capable of bearing the economic risk
of such investment and can afford the loss of the total amount of such
investment.


 


(g)                                 Purchaser does
not have an overall commitment to investments which are not readily marketable
that is disproportionate to Purchaser’s net worth, and Purchaser’s investment
in the Shares will not cause such overall commitment to become excessive.  Purchaser has adequate net worth and means of
providing for Purchaser’s current needs and contingencies and has no need for
liquidity in such investment.


 


(h)                                 Purchaser
understands that the Shares are not being registered under the Securities Act
of 1933, as amended (the “Securities
Act”), or any state securities laws in reliance upon specific
exemptions thereunder for transactions not involving any public offering, and
the availability of such exemptions depends in part upon the accuracy of
Purchaser’s representations and warranties herein and that the Shares are
characterized as “restricted securities” under federal securities laws and that
under such laws and applicable regulations such securities may be resold
without registration under the Securities Act only in certain limited
circumstances. Purchaser also understands that there is no public market for
the Shares and that the sale or transfer of the Shares is also restricted by
the terms of the Stockholders Agreement and applicable state law.


 


(i)                                     The sale of the
Shares contemplated by this Agreement does not conflict with, or result in a
breach of, or a default under, or give rise to a right of acceleration under,
any agreement or instrument to which Purchaser is a party.


 


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(j)                                     Purchaser has
initialed the appropriate box below his or her signature indicating whether
Purchaser is an “accredited investor” as such term is defined on Exhibit A hereto.


 


(k)                                  Purchaser has
received a copy of the Stockholders Agreement and has had an opportunity to
review and ask questions about such Stockholders Agreement.  Purchaser understands that the Shares will be
bound by all of the terms, conditions, restrictions and obligations set forth
in the Stockholders Agreement as the same may be amended from time to time.


 


4.                                            Representations
and Warranties of the Company.  The Company represents and warrants to
Purchaser as follows:


 


(a)                                  All corporate
action on the part of the Company, its officers, directors and shareholders
necessary for the authorization, execution and delivery of, and the performance
of all obligations of the Company under, this Agreement has been taken or will
be taken prior to the Closing, and this Agreement constitutes valid and legally
binding obligations of the Company, enforceable in accordance with its terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or others laws of general application relating to or affecting
the enforcement of creditors’ rights generally and (ii) the effect of rules of
law governing the availability of equitable remedies.


 


(b)                                 The sale of the
Shares contemplated by this Agreement does not conflict with, or result in a
breach of, or a default under, or give rise to a right of acceleration under,
the Company’s Bylaws or Articles of Incorporation, or any agreement or
instrument to which Purchaser is a party.


 


5.                                            No Retention
Rights.  Nothing in this Agreement
shall confer upon Purchaser any right to continue to be employed by the Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company (or any subsidiary of the Company employing
or retaining the Purchaser) or of Purchaser, which rights are hereby expressly
reserved by each, to terminate his or her employment at any time and for any
reason, with or without cause.


 


6.                                            Legends.


 


(a)                                  All
certificates evidencing the Shares shall bear the following legend:


 


“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH
ACT OR LAWS AND EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF A STOCKHOLDERS
AGREEMENT WITH THE COMPANY, A COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE
OFFICES OF THE COMPANY.”


 


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(b)                                 If required by
the authorities of any state in connection with the issuance of the Shares, the
legend or legends required by such state authorities shall also be endorsed on
all such certificates.


 


7.                                            Entire
Agreement.  This
Agreement and the Stockholders Agreement contain the entire agreement between
the parties with respect to the Shares purchased hereunder.  Any oral or written agreements,
representations, warranties, written inducements or other communications made
prior to the execution of this Agreement with respect to the Shares purchased
hereunder shall be void and ineffective for all purposes.


 


8.                                            Governing Law.  The validity, construction and effect of this
Agreement shall be determined exclusively in accordance with the laws of the
State of New York, without regard to its provisions concerning the
applicability of laws of other jurisdictions. 
Any suit with respect hereto will be brought in courts of the State of
New York in New York county and the United States District Court for the
Southern District of New York, and Purchaser hereby agrees and submits to the
personal jurisdiction and venue thereof.


 


9.                                            Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


10.                                      Headings.  The headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.


 


11.                                      Waiver of Jury
Trial.  EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND
EXECUTIVE’S EMPLOYMENT BY THE COMPANY.


 


12.                                      Expenses.  Each party hereto shall pay all costs and
expenses that such party incurs with respect to the negotiation, execution,
delivery and performance of this Agreement.


 


13.                                      Successors and
Assigns; Amendment.  The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties.  Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except expressly as provided in
this Agreement.  Any term of this
Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company
and Purchaser.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, each
party hereto has caused this Agreement to be duly executed as of the date first
written above.


 


 


	
   

  	
  Ikaria
  Holdings, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Purchaser]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Please print address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  o  Purchaser is an Accredited Investor;

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  o  Purchaser is not an Accredited Investor

  



 

















 


EXHIBIT A


 


Accredited Investor
Definition


 


An “Accredited Investor” is any person who comes
within any of the categories below, among others, or who the issuer reasonably
believes comes within any of the categories below, at the time of the sale of
the securities to that person.


 


a.                                       A person or
entity who is a director or executive officer of the Company;


 


b.                                      Any natural
person who had an individual net worth, or joint worth with that person’s
spouse, at the time of his or her purchase which exceeds $1,000,000; or


 


c.                                       Any natural
person who had an individual income in excess of $200,000 in each of the two
most recent years or joint income with that person’s spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching
the same income level in the current year.


 


As used in this definition, the term “net worth”
means the excess of total assets over total liabilities.  For the purpose of determining a person’s net
worth, the principal residence owned by an individual should be valued at fair
market value, including the cost of improvements, net of current encumbrances.


 


“Executive officer” means the president, any vice
president in charge of a principal business unit, division or function (such as
sales, administration or finance), any other officer who performs a policy
making function, or any other person who performs similar policy making
functions for the issuer.  Executive
officers of subsidiaries may be deemed executive officers of the issuer if they
perform such policy making functions for the issuer.