EXHIBIT 10.20
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of September
24, 2003, among Robotic Vision Systems, Inc., a Delaware corporation (the
"Company"), and the purchasers listed on Exhibit A hereto (the "Purchasers").
RECITALS
A. Subject to the terms and conditions of this Agreement, the
Company wishes to issue and sell to each Purchaser and each Purchaser severally
wishes to purchase (i) the number of shares of common stock of the Company, par
value $0.01 per share (the "Common Stock") set forth opposite such Purchaser's
name on Exhibit A and (ii) warrants, substantially in the form of Exhibit B
hereto (each a "Warrant" and collectively, the "Warrants"), to purchase the
number of shares of Common Stock set forth opposite such Purchaser's name on
Exhibit A.
B. The Company and the Purchasers wish to set forth their
agreements and understandings with respect to the issue and sale of the shares
of Common Stock and the Warrants and the other matters set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
ARTICLE I.
DEFINITIONS
For all purposes of this Agreement the following terms shall have the
meanings set forth in this Article I:
"Additional Shares" has the meaning specified in Section 2.3 of this
Agreement.
"Additional Warrants" has the meaning specified in Section 2.3 of this
Agreement.
"Affiliate" or "Affiliates" means, with respect to any specified
Person, any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with
the Person specified. For purposes of this definition, control of a Person means
the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Applicable Laws" means any and all applicable foreign, federal, state
and local statutes, laws, regulations, ordinances, policies, and rules or common
law (whether now existing or hereafter enacted or promulgated), of any and all
governmental authorities, agencies, departments, commissions, boards, courts, or
instrumentalities of the United States, any state of the United States, any
other nation, or any political subdivision of the United States, any state of
the United States or any other nation, and all applicable judicial and
administrative, regulatory or judicial decrees, judgments and orders, including
common law rules and determinations.
"Board" means the Board of Directors of the Company.
"Business Day" means each day other than a Saturday, a Sunday or any
other day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to be closed.
"Capital Securities" means, as to any Person that is a corporation, the
authorized shares of such Person's equity, including all classes of common,
preferred, voting and non-voting equity, any non-equity securities that are
convertible into common stock and any rights to purchase such shares of Capital
Securities, including warrants, options, participants or other equivalents of or
interests therein (however designated), and, as to any Person that is not a
corporation or an individual, the ownership interests in such Person
acknowledged or consented to by such Person, including, without limitation, the
right to share in profits and losses, the right to receive distributions of cash
and property, and the right to receive allocations of items of income, gain,
loss, deduction and credit and similar items from such Person, whether or not
such interests include voting or similar rights entitling the holder thereof to
exercise control over such Person and any rights to purchase such shares of
Capital Securities, including, warrants, options, participants or other
equivalents of or interests therein (however designated).
"Charter" means the declaration of trust, articles or certificate of
incorporation, statute, constitution, joint venture or partnership agreement or
articles or other organizational document of any Person other than an
individual, each as from time to time amended or modified.
"Closing" has the meaning specified in Section 2.2 of this Agreement.
"Common Shares" has the meaning specified in Section 2.1 of this
Agreement.
"Common Stock" has the meaning specified in the Recitals to this
Agreement.
"Company" has the meaning specified in the introductory paragraph to
this Agreement.
"Confidential Private Placement Memorandum" means the Confidential
Private Placement Memorandum of the Company relating to the offering of the
Common Shares and the Warrants, dated as of August 28, 2003.
"Consolidated" or "consolidated" means, with reference to any term
defined herein, that term as applied to the Company's accounts and all of its
Subsidiaries' accounts, that may in accordance with GAAP, be consolidated with
the Company.
"Contracts" has the meaning specified in Section 3.13 of this
Agreement.
"Copyrights" means all United States and foreign copyright
registrations and applications therefore and unregistered copyrights.
"Damages" has the meaning specified in Section 8.1 of this Agreement.
"Disclosure Schedule" means the Disclosure Schedule described in
Article III and attached hereto as Exhibit D.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations thereunder, all
as the same shall be in effect at the time.
"Exchange Act Reports" has the meaning specified in Section 3.7 of this
Agreement.
"Generally accepted accounting principles" or "GAAP" means accounting
principles that are (a) consistent with the principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors and other
recognized principle-setting bodies as in effect as of the date of the relevant
document, (b) applied on a basis consistent with prior periods, and (c) such
that a certified public accountant would, insofar as the use of accounting
principles is pertinent, be in a position to base an opinion as to financial
statements in which such principles have been properly applied.
"Governmental Authority" means any nation or government, any state,
province, county or other political subdivision thereof, any entity exercising
any executive, legislative, judicial, regulatory or administrative functions of,
or pertaining to, government.
"Indebtedness" means all obligations, contingent and otherwise, that in
accordance with GAAP should be classified on the obligor's balance sheet as
liabilities, or to which reference should be made by footnotes thereto,
including without limitation, in any event and whether or not so classified: (i)
all debt and similar monetary obligations, whether direct or indirect; (ii) all
liabilities secured by any mortgage, pledge, security interest, lien, charge or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (iii) all
guaranties, endorsements and other contingent obligations whether direct or
indirect in respect of Indebtedness or performance of others, including any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase Indebtedness, or to assure the owner of
Indebtedness against loss, through an agreement to purchase goods, supplies or
services for the purpose of enabling the debtor to make payment of the
Indebtedness held by such owner or otherwise, and (iv) obligations to reimburse
issuers of any letters of credit.
"Intellectual Property" means Software, Technology and Trade Secrets.
"Intellectual Property Rights" means rights that exist under laws
respecting Copyrights, Patents, Trademarks, mask works and Trade Secrets.
"IRS" means the Internal Revenue Service.
"Lead Investor Group" has the meaning specified in Section 2.3 of this
Agreement.
"Lesser Price" has the meaning specified in Section 2.5 of this
Agreement.
"Lien" means (a) any encumbrance, mortgage, pledge, lien, charge or
other security interest of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof and the filing of any
financing statement under the Uniform Commercial Code
in any jurisdiction in connection with the creation of a security interest) upon
any property or assets of any character, or upon the income or profits
therefrom; (b) any acquisition of or agreement to have an option to acquire any
property or assets upon conditional sale or other title retention agreement,
device or arrangement (including a capitalized lease); or (c) any sale,
assignment, pledge or other transfer for security of any accounts, general
intangibles or chattel paper, with or without recourse.
"Material Adverse Effect" means (a) an adverse effect on the validity
or enforceability of this Agreement or any of the Related Agreements in any
material respect, (b) a material adverse effect on the financial condition,
business, results of operations or properties of the Company and its
Subsidiaries, taken as a whole except for any change, event or effect to the
extent arising from or relating to (i) general business or economic conditions
(including prevailing interest rate and stock market levels or general market
disruptions), and (ii) the general state of the industries and market sectors in
which the Company operates, or (c) an impairment of the ability of the Company
to fulfill its obligations under this Agreement, or any of the Related
Agreements in any material respect.
"Patents" means issued patents, including United States and foreign
patents, and applications therefore, and divisions, reissues, continuations,
continuations-in-part, re-examinations, renewals and extensions of any of the
foregoing; and certifications of invention, addition and utility models and
utility model applications.
"Person" means an individual, partnership, corporation, association,
trust, joint venture, unincorporated organization, limited liability company,
joint stock company, and any government, governmental department or agency or
political subdivision thereof or any other entity.
"Purchase Price" has the meaning specified in Section 2.1 of this
Agreement.
"Purchasers" has the meaning specified in the introductory paragraph to
this Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of the Closing, among the Company and the
Purchasers, substantially in the form of Exhibit D hereto.
"Related Agreements" means the Warrants and the Registration Rights
Agreement.
"SEC" means the Securities and Exchange Commission or any other
Governmental Authority at the time administering the Securities Act or the
Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder, all as the
same shall be in effect at the time.
"Software" means the manifestation, in tangible or physical form,
including, but not limited to, in magnetic media, firmware, and documentation,
of computer programs and databases, such computer programs and databases to
include, but not be limited to, management information systems, computer aided
design and/or engineering programs, computer aided manufacturing programs,
machinery control programs, and personal computer programs. The tangible
manifestation of such programs may be in the form of, among other things, source
code,
flow diagrams, listings, object code, and microcode. Software does not include
any Technology, Trade Secrets or Intellectual Property Rights.
"Subsidiary" means any Person that the Company now or hereafter shall
at the time own, directly or indirectly through another Person, at least a
majority of the outstanding Capital Securities (or other beneficial interest) or
a majority of the Voting Power of such Person; and the term "Subsidiaries" shall
mean all of such Persons collectively.
"Tax" or "Taxes" means (A) all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property or windfall profits taxes, or other taxes of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional
amounts imposed by any taxing authority (domestic or foreign) upon the Company
and each Subsidiary with respect to all periods or portions thereof ending on or
before the date of Closing and/or (B) any liability of the Company or any
Subsidiary for the payment of any amounts of the type described in the
immediately preceding clause (A) as a result of being a member of an affiliated
or combined group.
"Technology" means all types of technical information and data, whether
or not reduced to tangible or physical form, including, but not limited to,
know-how; product definitions and designs; research and development,
engineering, manufacturing, process, test, quality control, procurement, and
service specifications, procedures, standards, and reports; blueprints;
drawings; materials specifications, procedures, standards, and lists; catalogs;
technical information and data relating to marketing and sales activity; and
formulae. Technology does not include any Software or any Intellectual Property
Rights.
"Third Party Claims" has the meaning specified in Section 8.1 of this
Agreement.
"Trade Secrets" means information in any form relating to Technology or
Software that is considered to be proprietary information by the owner, is
maintained on a confidential or secret basis by the owner, and is not generally
known to other parties.
"Trademarks" means all United States and foreign trademark and service
xxxx registrations and applications therefore and unregistered trademarks and
service marks.
"Voting Power" means voting securities or other voting interests
ordinarily (and apart from rights accruing under special circumstances) having
the right to vote generally in the election of trustees or persons performing
substantially equivalent tasks and responsibilities.
"Warrant" or "Warrants" has the meaning specified in the Recitals to
this Agreement.
"Warrant Shares" has the meaning specified in Section 2.1 of this
Agreement.
In this Agreement the singular includes the plural and the plural the
singular; words importing any gender include the other genders; references to
statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; references to
"writing" include printing, typing, lithography and other means of expressing
words in a visible form; references to agreements and other contractual
instruments shall be deemed to include all amendments thereto or changes therein
entered into in accordance with their
respective terms but only to the extent to which such amendments or changes are
not prohibited by the terms of this Agreement; references to persons include
their permitted successors and assigns; "including" means including, without
limitation; "or" is not exclusive; "day" means a calendar day unless otherwise
specified; and an accounting term not otherwise defined has the meaning assigned
to it, and all determinations involving any such term required to be made herein
shall be made, in accordance with GAAP.
ARTICLE II.
SALE AND PURCHASE OF THE COMMON SHARES AND THE WARRANTS
SECTION 2.1. Sale and Purchase of the Common Shares and the Warrants.
Subject to all of the terms and conditions hereof (including, without
limitation, satisfaction or waiver of the conditions to the Closing set forth in
Articles V and VI hereof) and in reliance on the representations and warranties
set forth or referred to herein, the Company shall issue and sell to each
Purchaser, and each Purchaser shall severally purchase (i) a number of shares of
Common Stock set forth opposite such Purchaser's name on Exhibit A hereto (the
"Common Shares"), at a purchase price of $0.50 per share (the "Purchase Price"),
and (ii) Warrants expiring five years after the date of the Closing to purchase
up to the number of Common Shares of Common Stock equal to 50% of the number of
such shares purchased by such Purchaser at the Closing at a price per share
equal to the last reported price per share of the Company's Common Stock on the
trading day prior to the Closing, subject to certain anti-dilution adjustments
set forth in the Warrants. The Warrants are exercisable into an aggregate of up
to 5,000,000 shares of Common Stock (the "Warrant Shares").
SECTION 2.2. Closing. The consummation of the purchase and sale of the
Common Shares and the Warrants shall take place at the offices of Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP, New York, New York, or such other mutually agreed upon
location, on September 26, 2003 (which date, time and place are referred to in
this Agreement as the "Closing"). At the Closing, subject to the terms and
conditions of this Agreement:
(i) the Company shall deliver to each Purchaser (A)
certificates evidencing the number of Common Shares set forth on Exhibit A and
(B) the Warrants to be issued to such Purchaser hereunder as set forth on
Exhibit A; and
(ii) each Purchaser shall deliver to the Company the
Purchase Price in immediately available funds to a bank account designated by
the Company at least one Business Day prior to the Closing.
The conditions precedent to the Closing are set forth in Articles V and VI of
this Agreement.
SECTION 2.3. Lead Investor Option.
(a) During the period ending thirty (30) days after the Closing,
the Purchasers listed on Exhibit A-1 hereto (the "Lead Investor Group") shall
have the right (but not the obligation) to purchase (i) up to an aggregate of
2,000,000 shares of Common Stock (the "Additional Shares") at the Purchase Price
per share specified in Section 2.1, and (ii) Warrants to purchase an aggregate
of up to 1,000,000 shares of Common Stock (the "Additional Warrants"). The
Additional Warrants shall have an expiration date, exercise price and other
terms substantially identical to those of the Warrants issuable pursuant to
Section 2.1.
(b) The Lead Investor Group shall give the Company at least one
Business Day's notice of their election to purchase Additional Shares and
Additional Warrants, which notice shall state the date of such purchase and the
number of Additional Shares and Additional Warrants to be purchased by Purchaser
in the Lead Investor Group. On the date specified in the notice, the Company
shall deliver to the Lead Investor Group certificates representing the
Additional Shares Warrants specified in such notice, and the Lead Investor Group
shall deliver to the Company the Purchase Price for such Additional Shares in
immediately available funds to the bank account designated pursuant to Section
2.2(ii), or such other bank account as the Company may designate.
SECTION 2.4. Use of Proceeds. The Company shall use the proceeds from
the sale of the Common Shares and the Additional Shares hereunder for general
corporate purposes, including research and development, repayment of debt and
working capital.
SECTION 2.5. Issuance of Common Stock or Warrants upon a Future
Offering. If, during the period ending eighteen (18) months after the Closing,
the Company issues Common Stock for a price per share less than the Purchase
Price (a "Lesser Price"), the Company shall issue additional shares of Common
Stock to the Purchasers such that each Purchaser shall have received an
aggregate number of shares of Common Stock equal to the amount paid by such
Purchaser pursuant to Sections 2.1 and 2.3 multiplied by such Lesser Price. In
consideration for such issuance, each Purchaser shall pay to the Company the par
value of any shares so issued pursuant to this Section 2.5. The obligations of
the Company pursuant to this Section 2.5 shall not be triggered by (a) the
issuance prior to the first anniversary of the Closing of an aggregate of
2,000,000 shares of Common Stock, less the number of shares issued pursuant to
Section 2.3, (b) any shares or warrants issued or sold in connection with the
refinancing or replacement of the Company's credit line with PNC Bank, National
Association, (c) any shares issued upon the exercise of any outstanding stock
options, warrants or other convertible securities, and (d) any shares issued in
connection with the satisfaction of trade debt of the Company.
SECTION 2.6. Right to Invest in Future Offerings. If, during the period
ending eighteen (18) months after the Closing, the Company offers additional
equity for sale, the Company shall to offer to sell to the Purchasers, in
proportion to the shares of Common Stock sold to them at the Closing, an
aggregate number of shares equal to 50% of the shares proposed to be sold to
other potential offerees in such offering, on substantially similar terms as the
Company may, in its discretion, offer to other potential offerees. The
obligations of the Company pursuant to this Section 2.6 shall not be triggered
by (a) the issuance prior to the first anniversary of the Closing of an
aggregate of 2,000,000 shares of Common Stock, less the number of shares issued
pursuant to Section 2.3, (b) any shares sold or warrants issued in connection
with the refinancing or replacement of the Company's credit line with PNC Bank,
National Association, (c) any shares issued upon the exercise of any outstanding
stock options, warrants or other convertible securities, and (d) any shares
issued in connection with the satisfaction of trade debt of the Company.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Prior to the execution of this Agreement, the Company has delivered to
the Purchasers the disclosure schedule (the "Disclosure Schedule") attached
hereto as Exhibit C and signed by the Chief Executive Officer of the Company
and, in order to induce the Purchasers to enter into this Agreement and to
complete the transactions as herein contemplated, the Company hereby represents
and warrants to the Purchasers, as of the date hereof and as of the date of the
Closing, as follows (unless otherwise specified, the representations and
warranties refer to circumstances immediately following the Closing):
SECTION 3.1. Organization and Good Standing. The Company is duly
organized, validly existing and in good standing in the State of Delaware, with
full power and authority to own its properties and carry on its business as it
is now (and as it is proposed in the Confidential Private Placement Memorandum
and in the Exchange Act Reports to be) operated and carried on by it. The
Company is duly qualified or licensed to do business, and is in good standing,
in each jurisdiction in which the character or location of the property owned,
leased or operated by it or the business as currently conducted by it in such
jurisdiction makes or heretofore made such qualification or licensing necessary,
except where the failure to be so qualified has no Material Adverse Effect.
SECTION 3.2. Authorization. The execution, delivery and performance by
the Company of this Agreement and of each Related Agreement, the issuance and
sale by the Company of the Common Shares, the Warrants and the Warrant Shares
hereunder and the consummation of the transactions contemplated hereby and
thereby (i) are within the Company's power and authority; (ii) have been duly
authorized by all necessary corporate, stockholder, and any other required
corporate or other action or proceedings; and (iii) do not and will not result
in the creation of any Lien upon any of the Company's properties or assets, or
conflict with or result in any breach of any provision of the Company's Charter
or by-laws or any law, regulation, order, judgment, writ, injunction, permit or
contract to which the Company is subject.
SECTION 3.3. Enforceability. The execution and delivery by the Company
of this Agreement and of each Related Agreement, and the issuance and sale by
the Company of the Warrants hereunder, will result in legal and valid binding
obligations of the Company, enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as enforceability may
be limited by bankruptcy, insolvency, moratorium or other laws affecting the
enforcement of creditors rights generally, or by principles of equity, whether
applied in a proceeding at law or in equity.
SECTION 3.4. Capitalization.
(a) Capital Securities. As of the date of this Agreement, the
Company's authorized Capital Securities consisted of 100,000,000 shares of
Common Stock, $.01 par value per share, of which 63,285,113 shares were
outstanding and issued as of September 22, 2003. The shares of Common Stock
reserved for issuance are set forth in Section 3.4 of the Disclosure Schedule.
Section 3.4 of the Disclosure Schedule sets forth a capitalization table
indicating the equity (including options and warrants), and debt capitalization
of the Company immediately prior to the issuance of the Common Shares, the
Warrants and the Warrant Shares and immediately after
giving effect to the issuance of the Common Shares, the Warrants and the Warrant
Shares at the Closing. All of the issued shares of the Company's Capital
Securities have been duly authorized, are validly issued and outstanding, are
fully paid and nonassessable, are not subject to any preemptive rights and have
been offered and sold in compliance with all Applicable Laws. The Common Shares,
the Warrants and the Warrant Shares shall, upon the consummation of the
transactions contemplated hereby and the payment of the purchase price
therefore, be duly authorized and issued not subject to any preemptive rights
and without causing any adjustments pursuant to any antidilution rights,
transferred to Purchasers free and clear of all Liens and, assuming the accuracy
of each Purchaser's representations and warranties in this Agreement, offered
and sold in compliance with all Applicable Laws.
(b) Options, Etc. Except as set forth in Section 3.4 of the
Disclosure Schedule, there are no outstanding rights (either pre-emptive or
other) or options to subscribe for or purchase from the Company or any
Subsidiary, or any warrants or other agreements providing for or requiring the
issuance or purchase by the Company or any Subsidiary of, any Capital
Securities, or any obligations or securities convertible into or exchangeable,
for, or exercisable into, the Company's Capital Securities or the Capital
Securities of any Subsidiary, or any voting trusts, proxies, agreements or
understandings relating to the voting of the Company's Capital Securities or the
Capital Securities of any Subsidiary nor any restrictions on the transferability
or sale of such shares or other equity or member interests except under the
Securities Act, and state "blue sky" or securities laws. Except as set forth in
Section 3.4 of the Disclosure Schedule, the Company is not subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire, redeem
or retire any shares of Capital Securities or other equity or member interests
or any securities convertible into or exchangeable for any such Capital
Securities or other equity or member interests, except as required by this
Agreement or the Related Agreements.
(c) Share Reservations. Section 3.4 of the Disclosure Schedule
includes a schedule of the unissued shares of Common Stock reserved for
issuance. At the time of the Closing, the Company shall have duly and validly
reserved an adequate number of shares of Common Stock for issuance upon the
exercise of the Warrants, and upon such issuance, in accordance with the terms
of the Warrants, such shares will be duly authorized, validly issued, fully
paid, and nonassessable, and, assuming the accuracy of Purchasers'
representations and warranties in this Agreement, issued to the Purchasers in
compliance with all Applicable Laws.
SECTION 3.5. Subsidiaries. Except as set forth in Section 3.5 of the
Disclosure Schedule, the Company does not have any Subsidiaries, and neither the
Company nor any Subsidiary participates in any joint venture or similar
arrangement with any Person. No Subsidiary is a party to, or otherwise subject
to any legal restriction or any agreement (other than customary limitations
imposed by corporate law or comparable statutes) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to the Company or any of its Subsidiaries that owns
Capital Securities or similar equity interests of such Subsidiary. All of the
issued and outstanding Capital Securities of each Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable, are not subject
to any preemptive rights and have been offered and sold in compliance with all
Applicable Laws. No Capital Securities of any Subsidiary are reserved for any
purpose, and there are no outstanding securities convertible into or
exchangeable for any Capital Securities of any Subsidiary and no outstanding
options, rights or warrants to purchase or to subscribe for such Capital
Securities of any Subsidiary.
SECTION 3.6. Consents. None of the execution and delivery of this
Agreement, the Related Agreements or the issuance of the Common Shares, the
Warrants or the Warrant Shares, the consummation of any of the transactions
contemplated hereby or thereby or compliance with the terms and provisions
hereof or thereof conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a material right under, or result in
the creation of any Lien upon any property or asset of the Company or its
Subsidiaries under (i) the Charter, by-laws, or other organizational documents
(each as amended through the date of the Closing), of the Company or any
Subsidiary; (ii) any Applicable Law or any order, judgment, injunction or decree
of any court or Governmental Authority applicable to the Company or any
Subsidiary or any of their assets or properties; or (iii) any Contract, license,
permit or franchise to which the Company or any Subsidiary is a party, by which
the Company or any Subsidiary may be bound applicable to any property or asset
of the Company or its Subsidiaries or that would prevent the consummation of the
transactions contemplated hereby except, in each case, where such violation,
conflict, breach or default would not have a Material Adverse Effect. No
consent, approval, authorization or other action by, or filing with, any third
party, court, Governmental Authority or other Person is required in connection
with the execution, delivery and performance of this Agreement, the Related
Agreements or the transactions contemplated hereby or thereby by the Company or
any Subsidiary, except for consents already obtained.
SECTION 3.7. Reports and Financial Statements; Undisclosed Liabilities.
Except as set forth in Schedule 3.7 of the Disclosure Schedule or as may have
been updated in subsequent filings, the financial statements and supporting
schedules included in the Company's periodic filings filed pursuant to the
Exchange Act are complete and correct in all material respects, are materially
consistent with the books and records of the Company and the Subsidiaries,
comply as to form in all material respects with applicable accounting
requirements and to the rules and regulations of the SEC with respect thereto,
and present fairly in all material respects the consolidated financial position
of the Company and the Subsidiaries as of the dates specified (subject to normal
year-end audit adjustments in the case of unaudited interim financial
statements) and the consolidated results of their operations and cash flows for
the periods specified (subject to normal year-end audit adjustments in the case
of unaudited interim financial statements); such financial statements, including
the related schedules and notes thereto, were prepared in conformity with GAAP
on a consistent basis during the periods involved, except as indicated therein
or in subsequent filings or in the notes thereto. The Company's periodic filings
pursuant to the Exchange Act since December 31, 2002 (collectively, the
"Exchange Act Reports") do not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not misleading.
Neither the Company nor any of the Subsidiaries has any material liability
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due), other than: (i) liabilities disclosed in the Exchange Act
Reports, (ii) liabilities which have arisen after the date of the last Exchange
Act Report in the ordinary course of business and (iii) liabilities of the type
not required under GAAP to be reflected in the Company's financial statements
included in the Exchange Act Reports.
SECTION 3.8. Exchange Act Compliance. Except as set forth in Schedule
3.8 of the Disclosure Schedule, in the past three years, the Company has timely
filed all documents required to be filed with the SEC pursuant to the Exchange
Act and the rules and regulations
thereunder. All such documents, when so filed, complied as to form in all
material respects with the Exchange Act.
SECTION 3.9. Disclosure. The Confidential Private Placement Memorandum
as of its date and as of the date hereof (considered in conjunction with this
Agreement and the Disclosure Schedule) does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 3.10. No Material Adverse Changes. Since June 30, 2003, except
as set forth in the Exchange Act Reports or in Section 3.10 of the Disclosure
Schedule: (i) there has been no event, circumstance or condition which has had
or would reasonably be expected to have a Material Adverse Effect; and (ii)
except for the transactions contemplated by this Agreement or the Related
Agreements or as set forth in the Exchange Act Reports, there has been no
material transaction entered into by the Company or any of the Subsidiaries
other than (a) transactions in the ordinary course of business or (b)
transactions which have not had and would not reasonably be expected to have a
Material Adverse Effect; and (iii) there have not been any changes in the
Capital Securities of the Company or any material increases in the Indebtedness
of the Company or any of the Subsidiaries or any dividend payment on any Capital
Securities of the Company.
SECTION 3.11. Tax Returns. The Company and each Subsidiary have filed
all tax returns and reports that are required to be filed with any Governmental
Authority and have paid all Taxes that have become due, and made adequate
provision for the payment of all Taxes that will become due, under applicable
foreign, federal, state or local governmental law or regulations with respect to
the periods for which such returns and reports were filed. The Company and the
Subsidiaries do not have any material liabilities for taxes other than those
incurred in the ordinary course of business and in respect of which adequate
reserves are being maintained by the Company and the Subsidiaries in accordance
with GAAP consistently applied. Except as set forth in Section 3.11 of the
Disclosure Schedule, in the past six years, no federal, state, foreign, local or
other tax returns for the Company and the Subsidiaries have been audited by the
IRS or other taxing authority. No deficiency or assessment with respect to, or
proposed adjustment of, the Company's or any of the Subsidiaries' federal,
state, local, foreign or other tax returns is pending or, to the best of the
Company's knowledge, threatened. There is no tax lien, whether imposed by any
federal, state, local or other tax authority, outstanding against the assets,
properties or business of the Company or any Subsidiary. There are no applicable
taxes, fees or other governmental charges payable by the Company or any of the
Subsidiaries in connection with the execution and delivery of this Agreement or
the Related Agreements or the issuance to the Purchasers by the Company of the
Common Shares, the Warrant or the Warrant Shares.
SECTION 3.12. Solvency. Immediately following the Closing of the
transactions contemplated by this Agreement, the Company will expect to be able
to pay its debts as they mature, will have capital sufficient to carry on its
business and all businesses in which it is about to engage, and will have assets
which will have a present fair salable value greater than the aggregate amount
of the Company's indebtedness. The Company does not intend to incur debts beyond
its ability to pay as such debts mature. The Company does not contemplate filing
a petition in bankruptcy or for reorganization under the Federal Bankruptcy Code
and, to the knowledge of the Company, there are no bankruptcy or insolvency
proceedings threatened against the Company.
SECTION 3.13. Material Contracts and Obligations. Except as set forth
in Section 3.13 of the Disclosure Schedule, neither the Company nor any
Subsidiary is in default in the performance, observance or fulfillment of any
obligation, covenant or condition contained in any agreement, contract,
commitment, instrument, plan or undertaking material to the business of the
Company and the Subsidiaries taken as a whole (collectively, the "Contracts")
and no event has occurred which, with or without the giving of notice or lapse
of time or both, would constitute or result in a default thereunder except, in
either case, for such defaults or events that would not reasonably be expected
to have a Material Adverse Effect. Each of the Contracts is valid and
enforceable in accordance with its terms except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity) and except for those failures of Contracts (or provisions thereof) to be
valid or enforceable which would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
SECTION 3.14. Licenses. Each material license granted, issued or
assigned to the Company and each Subsidiary as of the date of the Closing by any
Governmental Authority is held by the Company or Subsidiary free and clear of
any Liens and is in full force and effect and no material default by the Company
or any Subsidiary has occurred and is continuing thereunder.
SECTION 3.15. Compliance with Law. Each of the Company and its
Subsidiaries is in compliance with all Applicable Laws, except where the failure
to so comply would not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any Subsidiary has received any notification alleging
any violations of any of the foregoing.
SECTION 3.16. Litigation. Except as disclosed in the Exchange Act
Reports, neither the Company nor any Subsidiary is a party to any suit, claim,
action, proceeding or investigation (including those brought by Governmental
Authorities) which is reasonably likely to have a Material Adverse Effect or
which concerns this Agreement or the Related Agreements and the transactions
contemplated hereby and thereby nor is any such suit, claim, action, proceeding
or investigation pending or, to the knowledge of the Company, threatened in
writing by or against the Company or any Subsidiary. With respect to any suits,
claims, actions or proceedings or investigations disclosed in the Exchange Act
Reports, the costs of defense are being funded by insurance and none is
reasonably likely to result in a Material Adverse Effect.
SECTION 3.17. Employee Benefit Plans. The terms and operations of each
Employee Benefit Plan (as defined in the Employee Retirement Income Security Act
of 1974) of the Company comply in all material respects with all Applicable Laws
relating to such Employee Benefit Plans. Except as set forth in Section 3.17 of
the Disclosure Schedule, there are no unfunded obligations of the Company under
any retirement, pension, profit-sharing, deferred compensation plan or similar
program. The Company is not required to make any payments or contributions to
any Employee Benefit plan pursuant to any collective bargaining agreement or, to
the knowledge of the Company, any applicable labor relations law.
SECTION 3.18. Intellectual Property Rights.
(a) To the knowledge of the Company, none of the Company's
material Intellectual Property Rights has been opposed or held unenforceable and
each of such Intellectual Property
Rights is valid, subsisting and enforceable. Each of the Company's material
registered Intellectual Property Rights is duly registered in the name of the
Company.
(b) The businesses of the Company, including the development,
manufacture, marketing, sale or use of any product or service by the Company, do
not require or use any Intellectual Property Rights not owned by, licensed to or
otherwise validly used by the Company. The Company is the absolute owner and has
the sole and absolute right to use its material Intellectual Property Rights.
(c) To the knowledge of the Company, the operation of the
businesses of the Company in the normal course of business prior to the date
hereof does not infringe in any respect upon the Intellectual Property Rights of
any Person, and, except as would not be reasonably likely to have a Material
Adverse Effect, no person has claimed or threatened to claim the right to use
any Intellectual Property Rights or to deny the right of any of the businesses
of the Company to use same. No proceeding alleging infringement of the
Intellectual Property Rights of any Person is pending or, to the knowledge of
the Company, threatened against the Company.
SECTION 3.19. Proprietary Information and Inventions Agreement. Each
employee and officer of the Company has executed a proprietary information and
inventions agreement. The foregoing proprietary information and inventions
agreements have been properly implemented so that they cover the entire period
that each employee and officer has been employed or engaged by the Company; and
no such person claims or, to the Company's knowledge after due inquiry in the
normal course of business, has any basis to claim, that he or she has the right
to exclude the Company from using any Intellectual Property that would be useful
or relevant to the Company's business as conducted and proposed to be conducted.
SECTION 3.20. Employee Matters. Neither the Company nor any Subsidiary
is a party to, and there does not otherwise exist, any agreement with any labor
organization, collective bargaining or similar agreement with respect to
employees of any Company or any Subsidiary. Each of the Company and the
Subsidiaries has complied in all material respects with its obligations related
to, and is not in breach of or in default under, any of the foregoing
agreements, and except as would not be reasonably likely to have a Material
Adverse Effect, there are no complaints, grievances or arbitrations,
employment-related litigation, administrative proceedings or controversies
either pending (of which an employee of the Company has received service or
notice of process) or threatened, involving any employee, applicant for
employment, or former employee of any Company or any Subsidiary against such
entity. During the past three years, neither the Company nor any Subsidiary has
suffered or sustained any labor dispute resulting in any work stoppage and no
such work stoppage is threatened. There are no attempts presently being made to
organize any employees employed by the Company or any Subsidiary.
SECTION 3.21. Governmental Regulations. Neither the Company nor any
Subsidiary is now, or as a result of the consummation of the transactions
contemplated by this Agreement and the Related Agreements, will be, a "holding
company," or a "subsidiary company" of a "holding company" or an "affiliate" of
a "holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended; nor is the Company or any Subsidiary now, or as
a result of the consummation of the transactions contemplated by this Agreement
and the Related Agreements, will the Company or any Subsidiary be, an
"investment company," or
an "affiliated person" or a "principal underwriter" of an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended.
SECTION 3.22. Corporate Documents, Books and Records. Complete and
correct copies of the Charter and by-laws (or similar organization documents),
and of all amendments thereto, of the Company and each Subsidiary have been made
available to counsel for the Purchasers. The minute books of the Company and
each material Subsidiary contain complete and accurate records of all meetings
and consents in lieu of meetings of the board of directors (and its committees),
or body performing a similar function and holders of its Capital Securities
since its date of incorporation or formation.
SECTION 3.23. Exemption from Registration. Assuming the accuracy of the
Purchasers' representations and warranties hereunder, the purchase and sale of
the Common Shares and the Warrants pursuant hereto and the issuance of the
Warrant Shares upon exercise of the Warrants are exempt from the registration
requirements of the Securities Act. No form of general solicitation or general
advertising was used by the Company or its agents in connection with the offer
and sale of the Common Shares or the Warrants, including, but not limited to,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Assuming the accuracy of the Purchasers' representations and
warranties hereunder, the Company agrees that neither it, nor anyone acting on
its behalf, will offer the Common Shares or the Warrants so as to bring the
issuance and sale of the Common Shares, the Warrants or the Warrant Shares
within the provisions of Section 5 of the Securities Act.
SECTION 3.24. Brokers; Expenses. The Company has taken no action that
would give rise to any claim by any Person against any Purchaser for any
liability for brokerage or finder's fees or agents' commissions or any similar
charges in connection with this Agreement, and the Company shall indemnify and
hold harmless the Purchasers from and against any liability, settlement or
expense arising out of or in connection with any such claim resulting from the
actions of the Company.
ARTICLE IV.
PURCHASERS' REPRESENTATIONS
SECTION 4.1. Private Placement.
(a) Each Purchaser understands and acknowledges that:
(i) Common Shares and the Warrants to be issued to such
Purchaser and the shares of Common Stock that may be issued upon exercise of
such Warrants have not been registered under the Securities Act and such Common
Shares, Warrants and Warrant Shares must be held indefinitely unless
subsequently registered under the Securities Act or their sale is permitted
pursuant to an available exemption from such registration requirement;
(ii) the offering and sale of such Common Shares, Warrants
and Warrant Shares are intended by the Company to be exempt from registration
under the Securities Act by
virtue of the provisions of Section 4(2) of the Securities Act and Regulation D
promulgated thereunder; and
(iii) there is no existing public or other market for the
Warrants and there can be no assurance that such Purchaser will be able to sell
or dispose of the Common Shares, the Warrants or the Warrant Shares.
(b) Each Purchaser represents and warrants severally and not
jointly, solely as to itself, to the Company that:
(i) the Common Shares and the Warrants to be acquired by
it pursuant to this Agreement and any shares of Common Stock that may be issued
upon exercise of the Warrants are being acquired for its own account and without
a view to the distribution of any such securities in violation of the Securities
Act;
(ii) such Purchaser is an "Accredited Investor" as such
term is defined in Regulation D under the Securities Act and has such knowledge
and experience in financial and business matters so as to be capable of
evaluating the merits and risks of its investment in such securities, and such
Purchaser is capable of bearing the economic risks of such investment; and
(iii) such Purchaser believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Common Shares, the Warrants and the Warrant Shares. Such Purchaser
further represents that it has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of such securities
and the business, properties, prospects and financial condition of the Company.
SECTION 4.2. Transferees Bound. Each Purchaser understands and
acknowledges with the Company that the Company will not issue or transfer any
Common Shares, Warrants or Warrant Shares, unless (i) the transfer is effected
pursuant to an effective registration statement under the Securities Act, (ii)
the Person to whom they are being transferred shall first state in a writing
delivered to the Secretary of the Company the provisions of Section 4.1 hereof
or (iii) in the reasonable opinion of counsel to the Company, such Person may
acquire the Common Shares, the Warrants or the Warrant Shares, as applicable, in
accordance with applicable securities laws without compliance with the
provisions of Section 4.1 hereof.
SECTION 4.3. Brokers or Finders. Each Purchaser represents and
warrants, severally and not jointly, solely as to itself, to the Company that
except as otherwise provided in Section 3.24 hereof, the Company has not
incurred and will not incur, directly or indirectly, as a result of any action
taken by such Purchaser, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement.
SECTION 4.4. Authorization. Each Purchaser represents and warrants,
severally and not jointly, solely as to itself, to the Company that this
Agreement and the Related Agreements to which such Purchaser is a party have
been executed by such Purchaser or a duly authorized Person on such Purchaser's
behalf; and the execution, delivery and performance hereof and thereof have been
duly authorized by all appropriate action.
SECTION 4.5. Enforceability. Each Purchaser represents and warrants,
severally and not jointly, solely as to itself, to the Company that the
execution and delivery by such Purchaser
of this Agreement and each of the Related Agreements will result in legally
binding obligations of such Purchaser enforceable against such Purchaser in
accordance with the respective terms and provisions hereof and thereof except as
enforceability may be limited by bankruptcy, insolvency, moratorium or other
laws affecting the enforcement of creditors rights generally, or by principles
of equity, whether applied in a proceeding at law or in equity.
SECTION 4.6. Legends. Each Purchaser understands and acknowledges that
the certificates evidencing the Common Shares and the Warrant Shares will be
imprinted with the following legend: "This security has not been registered
under the Securities Act of 1933, as amended (the "Securities Act"). The holder
hereof, by purchasing this security, agrees for the benefit of Robotic Vision
Systems, Inc. that this security may be resold, pledged or otherwise transferred
only pursuant to an effective registration statement under the Securities Act or
exemption therefrom, in each case in accordance with any applicable securities
laws of any state of the United States. This security may be pledged, but not
transferred in violation of the foregoing, in connection with a bona fide margin
account or other loan secured by such securities."
The Company agrees that the foregoing legend shall be removed from any
such certificates at the request of the Purchaser (i) upon any sale pursuant to
an effective registration statement under the Securities Act, (ii) upon any sale
pursuant to Rule 144 under the Securities Act, or (iii) at such time as they
become eligible for sale under Rule 144(k) under the Securities Act.
SECTION 4.7. Purchasers Independent. Each Purchaser represents and
warrants, severally and not jointly, solely as to itself, that it has acted
independently from each other Purchaser in entering into this Agreement, that it
has not relied upon any representations or statements of any Purchaser, and that
it is not acting as an agent for, or on behalf of, any other Purchaser.
SECTION 4.8. Short Selling. Each Purchaser represents and warrants,
severally and not jointly, solely as to itself, that it has not engaged in any
short sales of the Company's Common Stock during the two (2) months prior to the
date hereof, and that it does not have a short position with respect to the
Company's Common Stock. Each Purchaser hereby agrees that it shall not engage in
any short sales of the Company's Common Stock until the Company files a Current
Report on Form 8-K with the SEC reporting the consummation of the transactions
occurring at the Closing.
ARTICLE V.
CONDITIONS TO EACH PURCHASER'S OBLIGATIONS TO PURCHASE
SECTION 5.1. Conditions of each Purchaser's Obligations Prior to the
Closing. The obligation of each Purchaser to purchase and pay for the Common
Shares and the Warrants to be purchased by it hereunder at the Closing is
subject to the satisfaction or waiver in writing of each of the following
conditions:
(a) Representations, Warranties and Covenants. (i) The Company
shall have performed in all material respects all of its obligations hereunder
required to be performed by it at or prior to the Closing and (ii) the
representations and warranties of the Company contained in
this Agreement and in any certificate or other writing delivered by the Company
pursuant hereto shall be true in all material respects (or, in the case of a
representation or warranty already qualified by materiality, in all respects) at
and as of the Closing as if made at and as of such date.
(b) Legality; Governmental and Other Authorizations. The purchase
of the Common Shares and the Warrants by the Purchasers and the sale of the
Common Shares and the Warrants by the Company shall not be prohibited by any law
or governmental order or regulation, and shall not subject the Company to any
penalty or special tax. All necessary consents, approvals, licenses, permits,
orders and authorizations of registrations, declarations and filings with, any
Governmental Authority or of or with any other Person, with respect to any of
the transactions contemplated by this Agreement or any of the Related
Agreements, shall have been duly obtained or made and shall be in full force and
effect.
(c) Registration Rights Agreement. The Purchaser shall have
received the Registration Rights Agreement, substantially in the form attached
hereto as Exhibit D, executed by the Company, and all covenants, agreements and
conditions contained therein that are required to have been performed or
complied with on or prior to the Closing shall have been performed or complied
with or waived in writing by the Purchaser.
(d) Closing Papers; Opinions. The Purchaser shall have received
the following, addressed to it and in form and substance reasonably satisfactory
to it:
(i) certified copies of the resolutions adopted by the
Board authorizing the execution, delivery and performance of this Agreement, the
Related Agreements, the Common Shares, the Warrants and the Warrant Shares and
each of the other agreements, instruments and transactions contemplated hereby;
(ii) copies of the Charter and by-laws of the Company as
in effect at the Closing, certified by the Secretary of the Company;
(iii) a certificate of the Secretary of the Company dated
the date of the Closing, as to the incumbency and signatures of the officers
executing this Agreement and all instruments executed pursuant hereto;
(iv) a certificate of the President and Chief Executive
Officer of the Company dated the date of the Closing, certifying that Section
5.1(a) and (b) hereof have been satisfied as of such date; and
(v) an opinion of counsel to the Company, dated as of the
date of the Closing, in form and substance reasonably satisfactory to the
Purchaser.
(e) Documentation; Legal Matters, etc. All matters relating to
this Agreement and the Related Agreements and the transactions contemplated
hereby and thereby and the legal and organizational structure of the Company and
its Subsidiaries shall be reasonably satisfactory from a legal point of view to
the Purchaser, and the Purchaser shall have received such additional
certificates, legal opinions and other documentation as it may have reasonably
requested with respect to this Agreement, the Related Agreements and the
transactions contemplated hereby and thereby.
(f) General. All instruments and legal, governmental,
administrative and corporate proceedings in connection with the transactions
contemplated by this Agreement and the Related Agreements shall be reasonably
satisfactory in form and substance to the Purchasers.
ARTICLE VI.
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The Company's obligation to sell and issue the Common Shares and the
Warrants to each Purchaser pursuant to this Agreement is subject to compliance
by such Purchaser with the agreements herein contained, and to the satisfaction
on or prior to the Closing, of the following conditions:
SECTION 6.1. Representations. The representations and warranties made
by such Purchaser in this Agreement and each of the Related Agreements shall be
true and correct in all material respects (or, in the case of a representation
or warranty already qualified by materiality, in all respects) when made and
shall be true and correct in all material respects as of the Closing.
SECTION 6.2. Related Agreements. Each of the Related Agreements to
which such Purchaser is a party shall have been executed by such Purchaser. All
covenants, agreements and conditions contained in this Agreement and the Related
Agreements which are to be performed or complied with by such Purchaser on or
prior to the Closing shall have been performed or complied with by such
Purchaser in all material respects.
SECTION 6.3. Legality; Governmental and Other Authorizations. The
purchase of the Common Shares and the Warrants by the Purchasers and the sale of
the Common Shares and the Warrants by the Company shall not be prohibited by any
law or governmental order or regulation, and shall not subject the Company to
any penalty or special tax. All necessary consents, approvals, licenses,
permits, orders and authorizations of registrations, declarations and filings
with any Governmental Authority or of or with any other Person, with respect to
any of the transactions contemplated by this Agreement or any of the Related
Agreements, shall have been duly obtained or made and shall be in full force and
effect.
SECTION 6.4. General. All instruments and legal, governmental,
administrative and corporate proceedings in connection with the transactions
contemplated by this Agreement and the Related Agreements shall be reasonably
satisfactory in form and substance to the Company.
ARTICLE VII.
SUBSEQUENT HOLDERS OF
ACQUIRED SECURITIES
Whether or not any express assignment has been made in this Agreement,
the provisions of this Agreement that are for the benefit of the Purchasers as
the holders of the Common Shares, the Warrants and the Warrant Shares are also
for the benefit of, and enforceable by, all subsequent recordholders of such
securities; provided that such subsequent recordholder shall have acquired such
securities in compliance with this Agreement, the Related Agreements and
Applicable Laws. The provisions of this Agreement that subject the Purchasers to
obligations as
the holders of such securities also shall subject to each subsequent
recordholder of such securities.
ARTICLE VIII.
INDEMNITY
SECTION 8.1. Indemnification. Notwithstanding any disclosures made in
the Disclosure Schedule, the Company hereby agrees to indemnify, exonerate and
hold each Purchaser and its (if applicable) controlling persons and their
respective shareholders, officers, directors, employees and agents free and
harmless from and against any and all actions, causes of action, or suits
brought against it by third parties ("Third Party Claims"), and all actual out
of pocket losses, liabilities, damages and expenses, including, without
limitation, reasonable attorneys' fees and disbursements (collectively,
"Damages") arising from any such Third Party Claim, incurred in its capacity as
a Purchaser by the indemnitee as a result of or relating to (i) such Purchaser's
status as a security holder of the Company, (ii) information provided by the
Company with respect to the transactions hereunder, (iii) the Company's business
or assets, or (iv) the execution, delivery, performance or enforcement of this
Agreement, the Related Agreements or any other agreement contemplated hereby or
thereby (including, without limitation, any failure by the Company or any
Subsidiary to comply with any of its covenants or any breach of its
representations and warranties in this Agreement, the Related Agreements or any
other agreement contemplated hereby or thereby) except where such Damages are
caused by the actions of the Purchaser, as indemnitee, in violation of its
obligations under such agreements.
SECTION 8.2. Disclaimer of Duty to Other Purchasers. No Purchaser shall
have any duty to any other Purchaser with respect to or in connection with such
Purchaser's exercise or omitting to exercise any of its rights hereunder or
under any of the Related Agreements. Further, each Purchaser hereby acknowledges
and agrees as follows: (i) no other Purchaser has acted or served as its agent
or representative for any purpose in connection with the transactions
contemplated hereby and by the Related Agreements; (ii) it has, independently
and without reliance on any other Purchaser, and based on such documents and
information as it has deemed appropriate, including, without limitation, the
Confidential Private Placement Memorandum and the representations and warranties
made by the Company, made its own analysis of the Company and the Company's
business and prospects and its own investment decision to enter into this
Agreement and to consummate the transactions contemplated hereby and by the
Related Agreements; (iii) no other Purchaser has made any representation or
warranty to it regarding, or is otherwise liable or responsible for the accuracy
of, any information any such other Purchaser has provided to it in connection
with the transactions contemplated hereby and by the Related Agreements, or for
the omission to provide any information that such Purchaser may have obtained
with respect to the Company or such transactions; and (iv) no other Purchaser
shall be liable or responsible to it for or with respect to (a) the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any of the provisions of this Agreement, any Related Agreement, the
securities purchased hereunder, or any agreement, instrument or document
executed in connection with any of the foregoing, (b) any representation,
warranty or covenant made by the Company in this Agreement or otherwise in
connection with the transactions contemplated hereby or by the Related
Agreements, or (c) the financial condition of the Company.
ARTICLE IX.
NOTICES
All demands, notices, requests, consents and other communications
required or permitted under this Agreement or any Related Agreement shall be in
writing and shall be personally delivered or sent by facsimile machine (with a
confirmation copy sent by one of the other methods authorized in this Article
IX), commercial (including FedEx) or U.S. Postal Service overnight delivery
service, or, deposited with the U.S. Postal Service mailed first class,
registered or certified mail, postage prepaid, as set forth below:
If to the Company, addressed to:
Robotic Vision Systems, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: President
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 1089
Attention: Xxx Xxxxxxx, Esq.
If to the Purchasers, to the addresses set forth on Exhibit A hereto.
Notices shall be deemed given upon the earlier to occur of (i) receipt by the
party to whom such notice is directed; (ii) if sent by facsimile machine, on the
day (other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) such notice is sent if sent (as evidenced by the
facsimile confirmed receipt) prior to 5:00 p.m. Eastern Time and, if sent after
5:00 p.m. Eastern Time, on the day (other than a Saturday, Sunday or legal
holiday in the jurisdiction to which such notice is directed) after which such
notice is sent; (iii) on the first Business Day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such notice is directed) following
the day the same is deposited with the commercial carrier if sent by commercial
overnight delivery service; or (iv) the fifth day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such notice is directed) following
deposit thereof with the U.S. Postal Service as aforesaid. Each party, by notice
duly given in accordance therewith may specify a different address for the
giving of any notice hereunder.
ARTICLE X.
SURVIVAL AND TERMINATION OF COVENANTS
AGREEMENTS, REPRESENTATIONS AND WARRANTIES
All covenants, agreements, representations and warranties made herein
or in any other document referred to herein or delivered to any party pursuant
hereto shall be deemed to have been relied on by each such party,
notwithstanding any investigation made by such party or on its behalf, and shall
survive the closing hereunder. All representations and warranties made
herein or in any of the Related Agreements are made as of the date of this
Agreement and shall survive for three years; provided that representations and
warranties made in Sections 3.2 - 3.4, 3.6(i) and (ii) and 3.23 - 3.24 shall
survive the execution and delivery of this Agreement, through and until the
expiration of the applicable statute of limitations with respect thereto. Any
representation or warranty that would otherwise terminate in accordance with
this Article X will continue to survive if a notice specifying the breach of
such representation or warranty shall have been timely given on or prior to such
termination date.
ARTICLE XI.
AMENDMENTS AND WAIVERS
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 the holders of two-thirds in interest of the Common
Shares and the Warrants. Any amendment or waiver effected in accordance with
this Article XI shall be binding upon the Company and each holder of any
interest in the Common Shares and the Warrants sold pursuant to this Agreement.
ARTICLE XII.
CHOICE OF LAW; SUBMISSION TO JURISDICTION
AND WAIVER OF JURY TRIAL; DISPUTE RESOLUTION
SECTION 12.1. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICTS OR CHOICE OF LAWS
PROVISIONS THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF
ANY OTHER JURISDICTION).
SECTION 12.2. Consent To the Non-Exclusive Jurisdiction Of the Courts
Of New York.
SUBJECT TO THE PROVISIONS OF SECTION 12.5, EACH OF THE PARTIES HERETO
HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN AND FOR NEW YORK COUNTY AND THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, AS WELL AS TO THE JURISDICTION OF ALL
COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY
SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE RELATED AGREEMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, INCLUDING, WITHOUT LIMITATION, ANY PROCEEDING
RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND
INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD.
SECTION 12.3. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS
AGREEMENT, ANY OF THE RELATED AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
SECTION 12.4. Equitable Remedies.
The parties hereto agree that irreparable harm would occur in the event
that any of the agreements and provisions of this Agreement were not performed
fully by the parties hereto in accordance with their specific terms or
conditions or were otherwise breached, and that money damages are an inadequate
remedy for breach of the Agreement because of the difficulty of ascertaining and
quantifying the amount of damage that will be suffered by the parties hereto in
the event that this Agreement is not performed in accordance with its terms or
conditions or is otherwise breached. It is accordingly hereby agreed that the
parties hereto shall be entitled to an injunction or injunctions to restrain,
enjoin and prevent breaches of this Agreement by the other parties and to
enforce specifically such terms and provisions of this Agreement in any court of
the United States or any state having jurisdiction, such remedy being in
addition to and not in lieu of, any other rights and remedies to which the other
parties are entitled to at law or in equity.
SECTION 12.5. Arbitration.
The parties agree that any dispute relating to, or arising in
connection with, the provisions of this Agreement or any of the Related
Agreements may at any time, at the election of either the Company or the
Purchaser, be submitted by either party to the American Arbitration Association
for final and binding arbitration pursuant to the American Arbitration
Association's Arbitration Rules. The American Arbitration Association's
determination shall be made within 90 days of the submission of such dispute.
Any such arbitration shall be conducted in New York, New York. The costs of such
proceeding other than the parties' legal and related expenses shall be borne as
determined by the American Arbitration Association.
SECTION 12.6. Entire Agreement.
This Agreement, the Related Agreements and the other writings referred
to herein or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties hereto with respect to its subject matter.
This Agreement supersedes and renders null and void all prior agreements and
understandings between the parties with respect to the subject matter hereof.
SECTION 12.7. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 12.8. Headings.
The descriptive headings of sections and paragraphs of this Agreement
are inserted for convenience only, and do not constitute a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Securities Purchase Agreement as of the day and year first above written.
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name: Xxx X. Xxxxx
Title: President
PURCHASER SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned Purchaser has executed this
Securities Purchase Agreement as of the day and year first above written.
Name of Parties
By: ________________________________
Name:
Title:
