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Exhibit 10.17
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of the
11th day of August, 1997, by and between MEDTRONIC ASSET MANAGEMENT, INC. (a
wholly-owned subsidiary of MEDTRONIC, INC.) (the "Purchaser") and COMPUTER
MOTION, INC. a Delaware corporation (the "Company").
WHEREAS, the Company has undertaken an initial public offering (the
"Initial Public Offering") of its Common Stock, $.01 par value per share (the
"Common Stock"), for which it filed a registration statement on Form S-1 and
amendments thereto (File No. 333-29505, the "Registration Statement") with the
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "Securities Act") and which was declared effective on August 11,
1997; and
WHEREAS, concurrently with the closing of the Initial Public Offering,
the Company desire to issue and sell to Medtronic, and Medtronic desires to
purchase from the Company, upon the terms and subject to the conditions set
forth in this Agreement, Seventy-Six Thousand Eight Hundred and Five (76,805)
shares (the "Shares") of the Company's Common Stock.
In consideration of the mutual covenants and representations set forth
in this Agreement, the Company and Purchaser agree as follows:
1. Purchase. Purchaser, in exercise of its right under the Debenture
Purchase Agreement dated March 18, 1997, hereby irrevocably (subject to
completion of the Initial Public Offering) agrees to purchase, on the terms and
conditions described herein, Seventy-Six Thousand Eight Hundred and Five
(76,805) Shares. Purchaser acknowledges that its right to purchase the balance
of up to $10,000,000 of the Company's Common Stock is no longer exercisable. The
Shares are purchased as an Additional Minority Investment pursuant to the
Principal Terms attached as Exhibit C to Debenture Purchase Agreement.
2. Purchase Price. Purchaser shall pay to the Company $13.02 per share,
or a total of One Million Dollars ($1,000,000). Such purchase price shall be
paid immediately following the closing of the Company's initial public offering
on August 15, 1997 (the "Closing Date").
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
(a) All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of the Company
hereunder and the authorization, issuance (or reservation for issuance) and
delivery of the Shares being issued hereunder has been taken or will be taken
prior to the Closing, and this Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms.
(b) The Shares which are being purchased by the Purchaser hereunder,
when issued, sold and delivered in accordance with the terms hereof for the
consideration expressed
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herein will be duly and validly issued, fully paid and nonassessable and, based
in part upon the representations of the Purchaser in this Agreement, will be
issued in compliance with all applicable federal and state securities laws.
(c) The execution and delivery by the Company of this Agreement, the
performance by the Company of its obligations hereunder, and the issuance, sale
and delivery of the Shares will not violate any provision of law, any order of
any court or other agency of government, the Certificate of Incorporation or the
By-laws of the Company, in each case as amended, or any provision of any
material indenture, agreement or other instrument to which the Company or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
material indenture, agreement or other instrument, or result in the creation or
imposition of any material lien upon any of the properties or assets of the
Company.
(d) The Registration Statement, as amended by Amendments Xx. 0, Xx. 0
and No. 3 thereto, including the preliminary prospectus delivered in connection
with the Initial Public Offering (the "Preliminary Prospectus"), copies of which
have heretofore been delivered to the Purchaser, has been prepared by the
Company in conformity with the requirements of the Securities Act and the rules
and regulations (the "Rules and Regulations") of the SEC under the Securities
Act, and has been filed with the SEC under the Securities Act; such amendment or
amendments to such Registration Statement, copies of which have heretofore been
delivered to the Purchaser, as may have been made prior to the date of this
Agreement have been so prepared and filed; and the Company has so prepared and
proposes so to file the final prospectus (the "Final Prospectus") in accordance
with Rule 424 promulgated under the Securities Act.
(e) The Commission has not issued any order preventing or suspending
the use of the Preliminary Prospectus. At the time of filing the Preliminary
Prospectus, such prospectus did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading. The Registration Statement when it became
effective and Final Prospectus when filed with the SEC pursuant to Rule 424 of
the Rules and Regulations and at all times subsequent thereto up to the Closing
Date and any amendments or supplements thereto will contain as of their
respective dates all material statements and information which are required to
be included therein in accordance with the Securities Act and the Rules and
Regulations and will in all material respects conform to the requirements of the
Securities Act and the Rules and Regulations, and neither the Registration
Statement nor the Final Prospectus, nor any amendment or supplement thereto,
will include as of such dates any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(f) Except as contemplated in the Registration Statement, subsequent
to the respective dates as of which information is given in the Registration
Statement, the Company has not incurred any direct or, to the best of the
Company's knowledge, contingent material liabilities or material obligations, or
entered into any material transactions or contracts, not in the ordinary course
of business, and there has not been any material increase or decrease in any
thereof or in any debt, except pursuant to the terms of the instruments
governing the same, or any material adverse change in the present or, the
Company's best knowledge, prospective, general affairs, business, management, or
financial condition of the Company.
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4. Investment Representation of Purchaser. Purchaser hereby represents
and agrees that:
(a) Purchaser understands that the Shares will be issued by the
Company without registration under the Securities Act of 1933 ("Securities Act")
and without qualification or registration under applicable state securities laws
("Blue Sky Laws") pursuant to exemptions from registration or qualification
contained in the Securities Act and in the Blue Sky Laws. Purchaser understands
that the Shares must be held indefinitely unless subsequently registered or
qualified under the Securities Act and under the Blue Sky Laws unless exemptions
from the registration or qualification requirements under the Securities Act and
under the Blue Sky Laws are available in connection with any proposed transfer
of the Shares by Purchaser.
(b) Purchaser agrees that none of the Shares, nor any interest in
the Shares, will be resold or otherwise transferred by Purchaser without
registration or qualification under the Securities Act and the Blue Sky Laws
unless Purchaser first demonstrates to the satisfaction of the Company that
specific exemptions from such registration or qualification requirements are
available with respect to the proposed transfer and provides the Company an
opinion of counsel satisfactory to the Company that the proposed transfer may be
made without violation of the Securities Act or the Blue Sky Laws and will not
affect the exemptions relied upon by the Company in connection with the original
issuance of the Shares.
(c) Without limiting the Company's representations in Section 3
above, Purchaser is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision regarding the merits and risks of investing
in the Shares. Purchaser has had ample opportunity to review information
regarding the Company and to ask questions of the Company and its
representatives and to seek independent investment, tax, and legal advice prior
to investing in the Shares. THE PURCHASER RECOGNIZES THAT THE SHARES ARE A
SPECULATIVE INVESTMENT INVOLVING A HIGH DEGREE OF RISK OF LOSS BY THE PURCHASER
AND THAT THE PURCHASER COULD LOSE THE ENTIRE AMOUNT OF THE PURCHASER'S
INVESTMENT. THE PURCHASER IS ABLE TO BEAR THE ECONOMIC RISK OF SAID INVESTMENT
AND AT THE PRESENT TIME COULD AFFORD A COMPLETE LOSS OF SAID INVESTMENT.
(d) Purchaser represents and warrants to the Company that Purchaser
is an "accredited investor" within the meaning of Rule 501 under the Securities
Act and that the Shares are being acquired for private investment for
Purchaser's own account and not with a view to or for sale in connection with
any distribution of the Shares to others.
(e) Purchaser acknowledges that the certificates representing the
Shares will bear the legends set forth herein:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF 1933, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER.
(f) Purchaser understands that the Shares constitute "restricted
securities" for the purposes of Rule 144 promulgated under the Securities Act.
The Company agrees to use its best efforts to keep available adequate public
information regarding the Company to satisfy subsection (c) of such Rule 144.
5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same agreement.
6. Controlling Law. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of
California applicable to agreements made and to be performed wholly within the
State of California.
7. Severability. If any provision of this Agreement is declared void,
such provision shall be deemed severed from this Agreement, which shall
otherwise remain in full force and effect.
8. Survival of Representations, Warranties and Agreements. The
representations, warranties, covenants and agreements contained herein shall
survive the purchase of the Shares and remain in full force and effect. No
independent investigation of the Company by the Purchaser, its counsel, or any
of its agents or employees shall in any way limit or restrict the scope of the
representations and warranties made by the Company in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
"THE COMPANY"
COMPUTER MOTION, INC.,
a Delaware corporation
By: _______________________________
Its: ______________________________
"PURCHASER"
MEDTRONIC ASSET MANAGEMENT, INC.
By: _______________________________
Its: ______________________________
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