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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of July 19,
1999, by and among ROBOTIC VISION SYSTEMS, INC., a corporation organized under
the laws of the State of Delaware (the "COMPANY"), and each of the purchasers
(the "PURCHASERS") set forth on the execution pages hereof (the "EXECUTION
PAGES").
WHEREAS:
A. The Company and each Purchaser are executing and delivering
this Agreement in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D ("REGULATION D"), as promulgated by
the United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
B. The Company desires to sell, and the Purchasers collectively
desire to purchase, upon the terms and conditions stated in this Agreement in
the amounts set forth on the Execution Pages, (i) Common Stock Purchase
Warrants in the form attached hereto as Exhibit A (the "WARRANTS"), which
entitle the holders thereof to acquire up to an aggregate of 3,090,907 shares
of the Company's common stock, par value $.01 per share (the "COMMON STOCK")
and (ii) 1,085,888 shares of Common Stock (the "COMMON SHARES"). The shares of
Common Stock issuable upon exercise of or otherwise pursuant to the Warrants
are referred to herein as the "WARRANT SHARES." The Warrants, the Common
Shares and the Warrant Shares are collectively referred to herein as the
"SECURITIES" and each of them may individually be referred to herein as a
"SECURITY."
C. Contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement, in the form attached hereto as Exhibit B (the "REGISTRATION
RIGHTS AGREEMENT"), pursuant to which the Company has agreed to provide certain
registration rights under the Securities Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as
follows:
1. PURCHASE AND SALE OF SECURITIES.
a. Purchase of Securities. The issuance, sale and purchase of
the Warrants and the Common Shares shall take place in a closing (the
"CLOSING"). The purchase price for each Warrant Share subject to a Warrant
shall be equal to One Dollar and Thirty Seven and One-Half Cents ($1.375) (the
"WARRANT PURCHASE PRICE") and the purchase price for each Common Share shall be
equal to Three Dollars and Five Cents ($3.05) (the "COMMON SHARE PURCHASE
PRICE"). The Warrant Purchase Price and the Common Share Purchase Price are
collectively referred to as the "PURCHASE PRICE". Each Purchaser's obligation
to purchase Securities hereunder is distinct and separate from each other
Purchaser's obligation to purchase Securities and no Purchaser shall be
required to purchase hereunder more than the number or types of Securities set
forth on such
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Purchaser's Execution Page hereto notwithstanding any failure by any other
Purchaser to purchase Securities hereunder. On the date of the Closing,
subject to the satisfaction (or waiver) of the conditions set forth in Section
6 and Section 7 below, the Company shall issue and sell to each Purchaser, and
each Purchaser severally agrees to purchase from the Company, such type and
number of Securities as is set forth on such Purchaser's Execution Page as
being purchasable by such Purchaser at the Closing.
b. Form of Payment. At the Closing hereunder, each Purchaser
shall pay the aggregate Purchase Price for the Securities being purchased by
such Purchaser at the closing by wire transfer to the Company, in accordance
with the Company's written wiring instructions, against delivery of the Common
Shares or duly executed Warrants, as the case may be, being purchased by such
Purchaser at the closing and the Company shall deliver such Common Shares and
Warrants against delivery of such aggregate Purchase Price.
c. Closing Date. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below, the date and
time of the issuance and sale of the Securities pursuant to this Agreement
shall be 12:00 noon, New York City time, on July 20, 1999, or such other time
as may be mutually agreed upon by the Company and the Purchasers purchasing
Securities. The Closing shall occur at the offices of Klehr, Harrison, Xxxxxx,
Xxxxxxxxx & Xxxxxx, LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser severally represents and warrants to the Company as
follows:
a. Investment Purpose. Purchaser is purchasing the Warrants or
the Common Shares, as the case may be, for Purchaser's own account for
investment purposes only and not with a present view towards the public sale or
distribution thereof, except pursuant to sales that are exempt from the
registration requirements of the Securities Act and/or sales registered under
the Securities Act. Purchaser understands that Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities
or blue sky laws or an exemption from such registration is available, and that
the Company has no present intention of registering the resale of any such
Securities other than as contemplated by the Registration Rights Agreement.
Notwithstanding anything in this Section 2(a) to the contrary, by making the
representations herein, the Purchaser does not agree to hold the Securities for
any minimum or other specific term and reserves the right to dispose of the
Securities at any time in accordance with or pursuant to a registration
statement or an exemption from the registration requirements under the
Securities Act.
b. Accredited Investor Status. Purchaser is an "ACCREDITED
INVESTOR" as that term is defined in Rule 501(a) of Regulation D or Purchaser
with such "PURCHASERS REPRESENTATIVE" as that term is defined in Rule 501(h) of
Regulation D has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the
prospective investment.
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c. Reliance on Exemptions. Purchaser understands that the
Securities are being offered and sold to Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and
state securities laws and that the Company is relying upon the truth and
accuracy of, and Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of Purchaser set forth herein in
order to determine the availability of such exemptions and the eligibility of
Purchaser to acquire the Securities.
d. Information. Purchaser and its counsel, if any, have been
furnished all materials relating to the business, finances and operations of
the Company and materials relating to the offer and sale of the Securities
which have been specifically requested by Purchaser or its counsel (including
the SEC Documents (as defined in Section 3(f) hereof)). Purchaser and its
counsel have been afforded the opportunity to ask questions of the Company and
have received what Purchaser believes to be satisfactory answers to any such
inquiries. Neither such inquiries nor any other investigation conducted by
Purchaser or its counsel or any of its representatives shall modify, amend or
affect Purchaser's right to rely on the Company's representations and
warranties contained in Section 3 below. Purchaser understands that
Purchaser's investment in the Securities involves a high degree of risk.
e. Governmental Review. Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
f. Transfer or Resale. Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the sale or resale of the
Securities have not been and are not being registered under the Securities Act
or any state securities laws, and the Securities may not be transferred unless
(a) the resale of the Securities has been registered thereunder; or (b)
Purchaser shall have delivered to the Company an opinion of counsel (which
opinion shall be in form, substance and scope customary for opinions of counsel
in comparable transactions) to the effect that the Securities to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration; or (c) the Securities are sold under Rule 144 promulgated under
the Securities Act (or a successor rule) ("RULE 144"); or (d) the Securities
are sold or transferred to an affiliate of Purchaser who agrees to sell or
otherwise transfer the Securities only in accordance with the provisions of
this Section 2(f) and who is an Accredited Investor; and (ii) neither the
Company nor any other person is under any obligation to register such
Securities under the Securities Act or any state securities laws (other than
pursuant to the Registration Rights Agreement). Notwithstanding the foregoing
or anything else contained herein to the contrary, the Securities may be
pledged as collateral in connection with a bona fide margin account or other
lending arrangement.
g. Legends. Purchaser understands that the Warrants and, until
such time as the Common Shares and the Warrant Shares have been registered
under the Securities Act as contemplated by the Registration Rights Agreement
or otherwise may be sold by Purchaser under Rule 144, the certificates for the
Common Shares and Warrant Shares may bear a restrictive legend in substantially
the following form:
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The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state of the United States. The securities
represented hereby may not be offered, sold, transferred or assigned
in the absence of an effective registration statement for the
securities under applicable securities laws unless offered, sold,
transferred or assigned under an available exemption from the
registration requirements of those laws.
The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of any Security upon
which it is stamped, if, unless otherwise required by state securities laws,
(a) the sale of such Security is registered under the Securities Act as
contemplated by the Registration Rights Agreement; (b) such holder provides the
Company with an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a public
sale or transfer of such Security may be made without registration under the
Securities Act; or (c) such holder provides the Company with reasonable
assurances that such Security can be sold under Rule 144. Purchaser agrees to
sell all Securities, including those represented by a certificate(s) from which
the legend has been removed, pursuant to an effective registration statement or
under an exemption from the registration requirements of the Securities Act.
In the event the above legend is removed from any Security and thereafter the
effectiveness of a registration statement covering such Security is suspended
or the Company determines that a supplement or amendment thereto is required by
applicable securities laws, then upon reasonable advance notice to Purchaser
the Company may require that the above legend be placed on any such Security
that cannot then be sold pursuant to an effective registration statement or
under Rule 144 and Purchaser shall cooperate in the replacement of such legend.
Such legend shall thereafter be removed when such Security may again be sold
pursuant to an effective registration statement or under Rule 144.
h. Authorization; Enforcement. This Agreement and the
Registration Rights Agreement have been duly and validly authorized, executed
and delivered on behalf of Purchaser and are valid and binding agreements of
Purchaser enforceable in accordance with their terms.
i. Residency. Purchaser is a resident of the jurisdiction set
forth under such Purchaser's name on the Execution Page hereto executed by such
Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
a. Organization and Qualification. The Company and each of its
subsidiaries is a corporation or limited liability company duly organized and
existing in good standing under the laws of the jurisdiction in which it is
incorporated or formed, as the case may be, and has the requisite corporate or
limited liability company power, as applicable, to own its properties and to
carry on its business as now being conducted. The Company and each of its
subsidiaries is duly qualified as a foreign corporation or limited liability
company, as applicable, to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary and where the failure so to qualify would have a
Material Adverse Effect.
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"MATERIAL ADVERSE EFFECT" means any material adverse effect on (i) the
Securities, (ii) the ability of the Company to perform its obligations
hereunder or under the Warrants or the Registration Rights Agreement or (iii)
the business, operations, properties, prospects or financial condition of the
Company and its subsidiaries, taken as a whole.
b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement, the Warrants and the Registration Rights Agreement, to issue
and sell the Warrants and the Common Shares in accordance with the terms
hereof, and to issue the Warrant Shares upon exercise of the Warrants in
accordance with the terms of such Warrants; (ii) the execution, delivery and
performance of this Agreement, the Warrants and the Registration Rights
Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of
the Warrants and the Common Shares and the issuance and reservation for
issuance of the Warrant Shares) have been duly authorized by the Company's
Board of Directors and no further consent or authorization of the Company, its
Board of Directors, any committee of the Board of Directors, or the Company's
stockholders is required (under Rules 4310(c)(25)(H) or 4460(i) promulgated by
the National Association of Securities Dealers ("NASD") or otherwise); (iii)
this Agreement has been duly executed and delivered by the Company; and (iv)
this Agreement constitutes, and, upon execution and delivery by the Company of
the Warrants and the Registration Rights Agreement, such agreements will
constitute, valid and binding obligations of the Company enforceable against
the Company in accordance with their terms.
c. Capitalization. The capitalization of the Company as of the
date hereof, including the authorized capital stock, the number of shares
issued and outstanding, the number of shares issuable and reserved for issuance
pursuant to the Company's stock option plans, the number of shares issuable and
reserved for issuance pursuant to securities (other than the Warrants)
exercisable or exchangeable for, or convertible into, any shares of capital
stock and the number of shares to be reserved for issuance upon exercise of the
Warrants is set forth on Schedule 3(c). All of such outstanding shares of
capital stock have been, or upon issuance in accordance with the terms of any
such warrants or options, will be, validly issued, fully paid and
non-assessable. None of the authorized but unissued shares of capital stock of
the Company (including the Warrant Shares) are subject to preemptive rights or
any other similar rights of the stockholders of the Company or any liens or
encumbrances created by the Company. Except for the Securities and as set
forth on Schedule 3(c), as of the date of this Agreement, (i) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exercisable or exchangeable for, any shares of capital
stock of the Company or any of its subsidiaries, or arrangements by which the
Company or any of its subsidiaries is or may become bound to issue additional
shares of capital stock of the Company or any of its subsidiaries, and (ii)
there are no agreements or arrangements under which the Company or any of its
subsidiaries is obligated to register the sale of any of its or their
securities under the Securities Act (except the Registration Rights Agreement).
Except as set forth on Schedule 3(c), there are no securities or instruments
containing antidilution or similar provisions that will be triggered by the
issuance of the Securities in accordance with the terms of this Agreement or
Warrants. The Company has furnished to the Purchasers true and correct copies
of the Company's Certificate of Incorporation as in effect on the date hereof
("CERTIFICATE OF INCORPORATION"), the Company's By-laws as in effect on the
date
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hereof (the "BY-LAWS"), and all other forms of instruments and agreements
governing securities convertible into or exercisable or exchangeable for
capital stock of the Company.
d. Issuance of Common Shares and Warrant Shares. The Common
Shares and Warrant Shares are duly authorized and reserved for issuance, and,
upon the issuance of the Common Shares in accordance with the terms hereof and
upon the exercise of the Warrants in accordance with the terms thereof, as the
case may be, will be validly issued, fully paid and non-assessable, and free
from all taxes, liens, claims and encumbrances and will not be subject to
preemptive rights or other similar rights of stockholders of the Company and
will not impose personal liability upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Warrants and the Registration Rights Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the issuance and reservation for
issuance of the Warrant Shares) will not (i) result in a violation of the
Certificate of Incorporation or By-laws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment
(including, without limitation, the triggering of any anti-dilution
provisions), acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or
result in a violation of any law, rule, regulation, order, judgment or decree
(including U.S. federal and state securities laws and regulations and rules or
regulations of any self-regulatory organizations to which either the Company or
its securities are subject) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected (except, with respect to clause (ii), for
such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect). Neither the Company nor any of its
subsidiaries is in violation of its Certificate of Incorporation, By-laws or
other organizational documents and neither the Company nor any of its
subsidiaries is in default (and no event has occurred which, with notice or
lapse of time or both, would put the Company or any of its subsidiaries in
default) under, nor has there occurred any event giving others (with notice or
lapse of time or both) any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, except for (i) actual or possible
violations, defaults or rights as would not, individually or in the aggregate,
have a Material Adverse Effect and (ii) as set forth in Schedule 3(e) hereto.
The businesses of the Company and its subsidiaries are not being conducted, and
shall not be conducted so long as a Purchaser owns any of the Securities, in
violation of any law, ordinance or regulation of any governmental entity,
except for possible violations the sanctions for which either singly or in the
aggregate would not have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and the Registration Rights Agreement, the
Company is not required to obtain any consent, approval, authorization or order
of, or make any filing or registration with, any court or governmental agency
or any regulatory or self regulatory agency or any other person or entity in
order for it to execute, deliver or perform any of its obligations under this
Agreement, the Warrants or the Registration Rights Agreement, in each case in
accordance with the terms hereof or thereof. The Company is not in violation
of the listing requirements of the Nasdaq National Market (the "NATIONAL
MARKET") and does not reasonably anticipate that the Common Stock will be
delisted by the National Market for the foreseeable future.
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f. SEC Documents, Financial Statements. Except as set forth in
Schedule 3(f) hereof, since September 30, 1995, the Company has filed (within
applicable extension periods) all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") (all of the foregoing and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by
reference therein, being hereinafter referred to herein as the "SEC
DOCUMENTS"). The Company has delivered to the Purchasers true and complete
copies of the SEC Documents. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act or
the Securities Act, as the case may be, and the rules and regulations of the
SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. None of the
statements made in any such SEC Documents is, or has been, required to be
amended or updated under applicable law (except for such statements as have
been amended or updated in subsequent filings made prior to the date hereof).
As of their respective dates, the financial statements of the Company included
in the SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC applicable with respect thereto. Such financial statements have been
prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to immaterial year-end audit adjustments).
Except as set forth in the financial statements of the Company included in the
SEC Documents filed prior to the date hereof or on Schedule 3(f) hereto, the
Company has no liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to the date of such
financial statements, (ii) liabilities not required by generally accepted
accounting principles ("GAAP") to be disclosed on a balance sheet prepared in
accordance with GAAP, and (iii) obligations under contracts and commitments
incurred in the ordinary course of business and not required under GAAP to be
reflected in such financial statements, which liabilities and obligations
referred to in clauses (i), (ii) and (iii), individually or in the aggregate,
are not material to the financial condition or operating results of the
Company.
g. Absence of Certain Changes. Since September 30, 1998, there
has been no material adverse change and no material adverse development in the
business, properties, operations, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, except as
disclosed in Schedule 3(g) or in the SEC Documents filed with the SEC prior to
the date hereof.
h. Absence of Litigation. Except as disclosed in the SEC
Documents filed with the SEC prior to the date hereof, there is no action,
suit, proceeding, inquiry or investigation before or by any
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court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company or any of its subsidiaries,
threatened against or affecting the Company, any of its subsidiaries, or any of
their respective directors or officers in their capacities as such, which could
reasonably be expected to have a Material Adverse Effect. To the Company's
knowledge, there are no facts which, if known by a potential claimant or
governmental authority, could give rise to a claim or proceeding which, if
asserted or conducted with results unfavorable to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse Effect.
i. Intellectual Property. Each of the Company and its
subsidiaries owns or is licensed to use all patents, patent applications,
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, permits, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "INTANGIBLES") necessary for the conduct of its
business as now being conducted and as described in the Company's Annual Report
on Form 10-K for the fiscal year ended September 30, 1998. To the best
knowledge of the Company, neither the Company nor any subsidiary of the Company
infringes or is in conflict with any right of any other person with respect to
any Intangibles which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received notice of any
pending conflict with or infringement upon such third party Intangibles, which
alleged pending conflict or alleged infringement, if adversely determined,
would result in a Material Adverse Effect. Except as disclosed in the SEC
Documents, the termination of the Company's ownership of, or right to use, any
single Intangible would not result in a Material Adverse Effect on the Company.
Neither the Company nor any of its subsidiaries has entered into any consent
agreement, indemnification agreement, forbearance to xxx or settlement
agreement with respect to the validity of the Company's or its subsidiaries'
ownership or right to use its Intangibles and, to the best knowledge of the
Company, there is no reasonable basis for any such claim to be successful. The
Intangibles are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or canceled or is the subject of cancellation
or other adversarial proceedings, and all applications therefor are pending and
in good standing. The Company and its subsidiaries have complied, in all
material respects, with their respective contractual obligations relating to
the protection of the Intangibles used pursuant to licenses. To the best
knowledge of the Company, no person is infringing on or violating the
Intangibles owned or used by the Company or its subsidiaries.
j. Foreign Corrupt Practices. Neither the Company, nor any of its
subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of the Company or any subsidiary has, in the course of his actions
for, or on behalf of, the Company, used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or
is in violation of any provision of the U.S. Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or employee.
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k. Disclosure. All information relating to or concerning the
Company set forth in this Agreement or provided to the Purchasers pursuant to
Section 2(d) hereof and otherwise in connection with the transactions
contemplated hereby is true and correct in all material respects and the
Company has not omitted to state any material fact necessary in order to make
the statements made herein or therein, in light of the circumstances under
which they were made, not misleading. No event or circumstance has occurred or
exists with respect to the Company or its subsidiaries or their respective
businesses, properties, prospects, operations or financial conditions, which
has not been publicly disclosed but, under applicable law, rule or regulation,
would be required to be disclosed by the Company in a registration statement
filed on the date hereof by the Company under the Securities Act with respect
to the primary issuance of the Company's securities.
l. Acknowledgment Regarding Purchasers' Purchase of the
Securities. The Company acknowledges and agrees that none of the Purchasers or
the Placement Agent is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement or the
transactions contemplated hereby, the relationship between the Company and the
Purchasers and the Placement Agent is "arms-length" and any statement made by
any Purchaser or the Placement Agent or any of their respective representatives
or agents in connection with this Agreement and the transactions contemplated
hereby is not advice or a recommendation and is merely incidental to such
Purchaser's purchase of Securities or such Placement Agent's role as a
placement agent and has not been relied upon by the Company, its officers or
directors in any way. The Company further acknowledges that the Company's
decision to enter into this Agreement has been based solely on an independent
evaluation by the Company and its representatives.
m. Absence of Form S-3 Eligibility. The Company is not currently
eligible to register the resale of its Common Stock on a registration statement
on Form S-3 under the Securities Act.
n. No General Solicitation. Neither the Company nor any
distributor participating on the Company's behalf in the transactions
contemplated hereby (if any) nor any person acting for the Company, or any such
distributor, has conducted any "general solicitation," as such term is defined
in Regulation D, with respect to any of the Securities being offered hereby.
o. No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would cause this offering of
Securities to be integrated with any prior offering of securities of the
Company for purposes of the Securities Act or for purposes of any applicable
stockholder approval provisions, and, neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Securities being offered hereby under the Securities Act.
p. Intentionally Left Blank.
q. Title. The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them
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which is material to the business of the Company and its subsidiaries, in each
case free and clear of all liens, encumbrances and defects except such as are
described in Schedule 3(q) or such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries. Any real
property and facilities held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such property and buildings by the Company and
its subsidiaries.
r. Tax Status. Except as set forth on Schedule 3(r) and except to
the extent that the failure to do so would not have a Material Adverse Effect,
the Company and each of its subsidiaries has made or filed all foreign,
federal, state and local income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject (unless and
only to the extent that the Company and each of its subsidiaries has set aside
on its books provisions reasonably adequate for the payment of all unpaid and
unreported taxes) and has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and has set aside on its books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. Except as set forth on Schedule 3(r), there are
no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of no basis
for any such claim. The Company has not executed a waiver with respect to any
statute of limitations relating to the assessment or collection of any federal,
state or local tax. Except as set forth on Schedule 3(r), none of the
Company's tax returns is presently being audited by any taxing authority.
s. No other Agreements. The Company has not, directly or
indirectly, made any agreements with the Purchasers relating to the terms or
conditions of the transactions contemplated hereby except as set forth in this
Agreement, the Warrants and the Registration Rights Agreement.
4. COVENANTS.
a. Best Efforts. The parties shall use their best efforts timely
to satisfy each of the conditions described in Section 6 and Section 7 of this
Agreement.
b. Form D: Blue Sky Laws. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Purchaser promptly after such filing. The Company shall,
on or before the date of the Closing, take such action as the Company shall
reasonably determine is necessary to qualify the Securities for sale to the
Purchasers pursuant to this Agreement under applicable securities or "blue sky"
laws of the states of the United States or obtain exemption therefrom, and
shall provide evidence of any such action so taken to the Purchasers on or
prior to the date of the Closing.
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c. Reporting Status. So long as any Purchaser beneficially owns
any of the Securities, the Company shall timely file all reports required to be
filed with the SEC pursuant to the Exchange Act, and the Company shall not
terminate its status as an issuer required to file reports under the Exchange
Act even if the Exchange Act or the rules and regulations thereunder would
permit such termination. In addition, the Company shall take all actions
necessary to be eligible to register the resale of its Common Stock on a
registration statement on Form S-3 under the Securities Act.
d. Use of Proceeds. The Company shall use the proceeds from the
sale of the Securities as set forth in Schedule 4(d).
e. Expenses. Except as otherwise provided herein and in Section
5 of the Registration Rights Agreement, each party hereto shall be responsible
for its own expenses incurred in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement and the other agreements
to be executed in connection herewith. Notwithstanding the foregoing, within
one (1) business day of the Closing, the Company shall reimburse Xxxxxxx
Capital Ltd. and Xxxxxx Capital Ltd. for their expenses (including attorneys'
fees and expenses) in connection with negotiating and preparing this Agreement
and the related documents and consummating the transactions contemplated
thereby up to an aggregate of $15,000.
f. Financial Information. The Company agrees to send the
following reports to each Purchaser until such Purchaser transfers, assigns or
sells all of its Securities: (i) within ten (10) days after the filing with the
SEC, a copy of its Annual Report on Form 10-K, its Quarterly Reports on Form
10-Q, its proxy statements and any Current Reports on Form 8-K; and (ii) within
one (1) day after release, copies of all press releases issued by the Company
or any of its subsidiaries.
g. Reservation of Shares. The Company shall at all times have
authorized and reserved for the purpose of issuance 100% of the number of
shares of Common Stock issuable upon exercise of the Warrants (without regard
to any limitations on the exercise of the Warrants), to provide for the full
exercise of the Warrants and the issuance of the Warrant Shares in connection
therewith, subject to and as otherwise required by the Warrants.
h. Listing. The Company shall promptly secure the listing of the
Common Shares and Warrant Shares upon each national securities exchange or
automated quotation system, if any, upon which shares of Common Stock are then
listed (subject to official notice of issuance) and shall maintain, so long as
any Purchaser (or any of their affiliates) own any Securities, such listing of
all Common Shares and all Warrant Shares from time to time issuable upon
exercise of the Warrants. The Company will use its best efforts to continue
the listing and trading of its Common Stock on the National Market and will
comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the NASD and such exchanges, as
applicable. The Company shall promptly provide to each holder of Common Shares
and Warrants copies of any notices it receives regarding the continued
eligibility of the Common Stock for trading on the National Market or, if
applicable, any securities exchange or
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automated quotation system on which securities of the same class or series
issued by the Company are then listed or quoted, if any, provided that the
Company shall publicly disclose any material information contained in such
notice prior to or concurrently with the giving of such notice to the
Purchasers.
i. Corporate Existence. So long as a Purchaser beneficially owns
any Securities, the Company shall maintain its corporate existence, and in the
event of a merger, consolidation or sale of all or substantially all of the
Company's assets, the Company shall ensure that the surviving or successor
entity in such transaction (i) assumes the Company's obligations hereunder and
under the Warrants and the agreements and instruments entered into in
connection herewith regardless of whether or not the Company would have had a
sufficient number of shares of Common Stock authorized and available for
issuance in order to effect the exercise in full of all Warrants outstanding as
of the date of such transaction and (ii) is a publicly traded corporation whose
common stock is listed for trading on the National Market, the New York Stock
Exchange ("NYSE") or the American Stock Exchange ("AMEX").
j. No Integrated Offerings. The Company shall not make any
offers or sales of any security (other than the Securities) under circumstances
that would require registration of the Securities being offered or sold
hereunder under the Securities Act or cause this offering of Securities to be
integrated with any other offering of securities by the Company for purposes of
any stockholder approval provision applicable to the Company or its securities.
k. Legal Compliance. The Company shall conduct its business and
the business of its subsidiaries in compliance with all laws, ordinances or
regulations of governmental entities applicable to such businesses, except
where the failure to do so would not have a Material Adverse Effect.
l. Filing of Form 8-K. On or before the 1st business day
following the Closing Date, the Company shall file a Form 8-K with the SEC
describing the terms of the transactions contemplated hereby.
5. TRANSFER AGENT INSTRUCTIONS.
a. The Company shall instruct its transfer agent to issue
certificates, registered in the name of each Purchaser or its nominee, for the
Warrant Shares in such amounts as specified from time to time by such Purchaser
to the Company upon exercise of the Warrants. To the extent and during the
periods provided in Section 2(f) and 2(g) of this Agreement, all such
certificates shall bear the restrictive legend specified in Section 2(g) of
this Agreement.
b. The Company warrants that no instruction other than such
instructions referred to in this Section 5, and stop transfer instructions to
give effect to Section 2(f) hereof in the case of the transfer of the Warrant
Shares prior to registration of the Warrant Shares under the Securities Act or
without an exemption therefrom, will be given by the Company to its transfer
agent and that the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in this
Agreement and the Registration Rights
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Agreement. Nothing in this Section shall affect in any way each Purchaser's
obligations and agreement set forth in Section 2(g) hereof to resell the
Securities pursuant to an effective registration statement or under an
exemption from the registration requirements of applicable securities law.
c. If a Purchaser provides the Company and the transfer agent
with an opinion of counsel, which opinion of counsel shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that the Securities to be sold or transferred may
be sold or transferred pursuant to an exemption from registration, or a
Purchaser provides the Company with reasonable assurances that such Securities
may be sold under Rule 144, the Company shall permit the transfer, and, in the
case of the Warrant Shares or the Common Shares, promptly instruct its transfer
agent to issue one or more certificates in such name and in such denominations
as specified by such Purchaser.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Warrants
and Common Shares to a Purchaser at the Closing hereunder is subject to the
satisfaction, at or before the Closing, of each of the following conditions
thereto, provided that these conditions are for the Company's sole benefit and
may be waived by the Company at any time in its sole discretion by providing
written notice of such waiver to each Purchaser. The obligation of the Company
to issue and sell the Warrants and Common Shares to any Purchaser hereunder is
distinct and separate from its obligation to issue and sell Warrants and Common
Shares to any other Purchaser hereunder and any failure by one or more
Purchasers to fulfill the conditions set forth herein or to consummate the
purchase of Warrants and Common Shares hereunder will not relieve the Company
of its obligations with respect to any other Purchaser.
a. The applicable Purchaser shall have executed the signature
page to this Agreement and the Registration Rights Agreement, and delivered the
same to the Company.
b. The applicable Purchaser shall have delivered the Purchase
Price for the Warrants and Common Shares purchased at the Closing in
accordance with Section 1(b) above.
c. The representations and warranties of the applicable Purchaser
shall be true and correct as of the date when made and as of the date and time
of the Closing as though made at that time (except for representations and
warranties that speak as of a specific date, which representations and
warranties shall be true and correct as of such date), and the applicable
Purchaser shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the applicable Purchaser at or prior
to the date of the Closing.
d. No litigation, statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the
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matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each Purchaser hereunder to purchase the Warrants
and Common Shares to be purchased by it at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for such Purchaser's sole
benefit and may be waived by such Purchaser at any time in the Purchaser's sole
discretion:
a. The Company shall have executed this Agreement and the
Registration Rights Agreement, and delivered the same to such Purchaser.
b. The Company shall have delivered to such Purchaser the Common
Shares and the duly executed Warrants (each in such denominations as such
Purchaser shall request) being so purchased by such Purchaser at the Closing in
accordance with Section 1(b) above.
c. The Common Stock shall be authorized for quotation and listed
on the National Market and trading in the Common Stock (or the National Market
generally) shall not have been suspended by the SEC or the National Market.
d. The representations and warranties of the Company shall be
true and correct as of the date when made and as of the date of the Closing as
though made at that time (except for representations and warranties that speak
as of a specific date, which representations and warranties shall be true and
correct as of such date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the date of the Closing. Such Purchaser shall have
received a certificate, executed by the Chief Executive Officer of the Company,
dated as of the date of the Closing to the foregoing effect and as to such
other matters as may be reasonably requested by such Purchaser.
e. No litigation, statute, rule, regulation, executive order,
decree, ruling, injunction, action or proceeding shall have been enacted,
entered, promulgated or endorsed by any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority
over the matters contemplated hereby which questions the validity of, or
challenges or prohibits the consummation of any of the transactions
contemplated by this Agreement.
f. Such Purchaser shall have received an opinion of the Company's
counsel, dated as of the date of the Closing, in form, scope and substance
reasonably satisfactory to the Purchaser and in substantially the form of
Exhibit C attached hereto.
g. The Company shall have delivered evidence reasonably
satisfactory to the Purchasers that the Company's transfer agent has agreed to
act in accordance with irrevocable instructions in the form attached hereto as
Exhibit D.
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h. There shall have been no material adverse changes and no
material adverse developments in the business, properties, operations,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, since the date hereof, and no information, of
which the Purchasers are not currently aware, shall come to the attention of
the Purchasers that is materially adverse to the Company.
i. The aggregate number of Securities being purchased hereunder
by all Purchasers at the Closing hereunder shall be (a) Warrants covering the
aggregate of 3,090,907 Warrant Shares and (b) 1,085,888 Common Shares.
j. Such Purchaser shall have received from the Company, certified
by the Secretary of the Company, a true and complete copy of each of (i) the
Company's articles of incorporation, (ii) the Company's bylaws and (iii)
resolutions of the Company's Board of Directors approving the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
k. Such Purchaser shall have received from the Company a copy of
the Company's articles of incorporation certified by the Office of the
Secretary of State of the State of Delaware and a Certificate of Good Standing
from the State of Delaware and the State of Massachusetts.
8. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed in the State of New York. The
Company irrevocably consents to the jurisdiction of the United States federal
courts and the state courts located in the City of New York in the State of New
York in any suit or proceeding based on or arising under this Agreement and
irrevocably agrees that all claims in respect of such suit or proceeding may be
determined in such courts. The Company irrevocably waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The Company
further agrees that service of process mailed by first class mail shall be
deemed in every respect effective service of process in any such suit or
proceeding. Nothing herein shall affect the right of any Purchaser to serve
process in any other manner permitted by law. The Company agrees that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
b. Waiver of Jury Trial. IN ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER OBLIGATIONS IN WHICH THE PARTIES TO
THIS AGREEMENT ARE ADVERSE PARTIES, THE COMPANY AND THE PURCHASERS HEREBY WAIVE
TRIAL BY JURY.
c. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement,
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once executed by a party, may be delivered to the other parties hereto by
facsimile transmission of a copy of this Agreement bearing the signature of the
party so delivering this Agreement.
d. Headings. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
e. Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
f. Entire Agreement; Amendments. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein. No provision of this
Agreement may be waived other than by an instrument in writing signed by the
party to be charged with enforcement and no provision of this Agreement may be
amended other than by an instrument in writing signed by the Company and each
Purchaser.
g. Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by
confirmed telecopy or by facsimile, and shall be effective five days after
being placed in the mail, if mailed, or upon receipt or refusal of receipt, if
delivered personally or by courier or confirmed telecopy, in each case
addressed to a party. The addresses for such communications shall be:
If to the Company:
Robotic Vision Systems, Inc.
0 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxx X. Xxxxx, Chairman and Chief Executive Officer
with a copy to:
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxx Xxxxxxx, Esq.
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If to any Purchaser, to such address set forth under such Purchaser's
name on the Execution Page hereto executed by such Purchaser. Each party shall
provide notice to the other parties of any change in address.
h. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns.
Except as provided herein or therein, neither the Company nor any Purchaser
shall assign this Agreement, the Registration Rights Agreement, the Warrants or
any rights or obligations hereunder or thereunder. Notwithstanding the
foregoing, any Purchaser may assign its rights hereunder to any of its
"affiliates" (as that term is defined under the Exchange Act) who are
Accredited Investors without the consent of the Company (provided such
assignees agree to be bound by all of the terms and conditions hereof), or to
any other person or entity with the consent of the Company, which consent shall
not be unreasonably withheld. This provision shall not limit a Purchaser's
right to transfer the Securities pursuant to the terms of the Warrants and this
Agreement or to assign such Purchaser's rights hereunder and/or thereunder to
any such transferee.
i. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person, except for the provisions of Section 3(l) which
are in part for the benefit of, and may be enforced by, the Placement Agent.
j. Survival. The representations, warranties, agreements and
covenants of the Company set forth in Sections 3, 4, 5 and 8 hereof shall
survive the closings hereunder notwithstanding any investigation conducted by
or on behalf of any Purchasers and the representations, warranties, covenants
and agreements of the Purchasers set forth in Section 2 hereof shall survive
the closings hereunder notwithstanding any investigation conducted by or on
behalf of the Company. Moreover, none of the representations and warranties
made by the Company herein shall act as a waiver of any rights or remedies a
Purchaser may have under applicable federal or state securities laws. The
Company agrees to indemnify and hold harmless each Purchaser and each of such
Purchaser's officers, directors, employees, partners, members, agents and
affiliates for expense, loss or damage arising as a result of or related to any
breach or alleged breach by the Company of any of its representations or
covenants set forth herein, including advancement of reasonable expenses as
they are incurred.
k. Publicity. The Company and each Purchaser shall have the
right to review before issuance any press releases, SEC or NASD filings, or any
other public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior review
of the Purchasers, to make any press release or SEC or NASD filings with
respect to such transactions as is required by applicable law and regulations
(although the Purchasers shall be consulted by the Company in connection with
any such press release and filing prior to its release and shall be provided
with a copy thereof) and such press release shall not name the Purchasers.
l. Further Assurances. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other
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agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
m. Termination. In the event that the Closing shall not have
occurred on or before that date which is five days after the date hereof,
unless the parties agree otherwise, this Agreement shall terminate at the close
of business on such date. Notwithstanding any termination of this Agreement,
any party not in breach of this Agreement shall preserve all rights and
remedies it may have against another party hereto for a breach of this
Agreement prior to or relating to the termination hereof.
n. Joint Participation. Each party to this Agreement has
participated in the negotiation of this Agreement, the Warrants and the
Registration Rights Agreement. As such, the language used herein and therein
shall be deemed to be the language chosen by the parties hereto to express
their mutual intent, and no rule of strict construction will be applied against
any party to this Agreement.
o. Equitable Relief. The Company acknowledges that a breach by
it of its obligations hereunder will cause irreparable harm to a Purchaser by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach of
its obligations hereunder (including, but not limited to, its obligations
pursuant to Section 5 hereof) will be inadequate and agrees, in the event of a
breach or threatened breach by the Company of the provisions of this Agreement
(including, but not limited to, its obligations pursuant to Section 5 hereof),
that a Purchaser shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach and requiring immediate
compliance by the Company, including the issuance and transfer of the
Securities, without the necessity of showing economic loss and without any bond
or other security being required.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
ROBOTIC VISION SYSTEMS, INC.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PURCHASER:
By:
------------------------------------------------
RESIDENCE:
ADDRESS:
SUBSCRIPTION AMOUNT
Number of Common Shares:
Purchase Price ($3.05 per Common Share): $
Number of Warrant Shares Subject to Warrant
Purchase Price ($1.375 per Warrant Share) $
Total Purchase Price $
