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EXHIBIT 10.1
SETTLEMENT, RELEASE AND STOCK PURCHASE AGREEMENT
THIS SETTLEMENT, RELEASE AND STOCK PURCHASE AGREEMENT (the "Agreement")
is made and entered into as of April 18, 2001, by and among PerkinElmer, Inc., a
Massachusetts corporation, ("Shareholder") and Genomic Solutions Inc., a
Delaware corporation (the "Corporation").
RECITALS
A. Shareholder owns 1,269,841 shares of the Corporation's issued and
outstanding common stock, which shares represent 100% of the issued and
outstanding common stock of the Corporation.
B. Shareholder and the Corporation are parties to that certain
Investment Agreement dated December 14, 1999, as amended on April 20, 2000 (the
"Investment Agreement"), setting forth, among other things, the agreement of the
parties thereto with respect to the call (the "Call"), as that term is defined
in the Corporation's Third Amended and Restated Certificate of Incorporation
("Certificate of Incorporation").
C. Shareholder and the Corporation are parties to that certain
Governance Agreement dated May 10, 2000 (the "Governance Agreement"), setting
forth, among other things, the agreement of the parties with respect to certain
actions to be taken upon exercise of the Call.
D. Shareholder and the Corporation are parties to that certain Sales,
Marketing and Distribution Agreement dated December 14, 1999 (the "Sales
Agreement") pursuant to which the Corporation granted Shareholder certain rights
to sell, market, distribute, and provide field service for, the Corporation's
products and services.
E. Shareholder has asserted claims against the Corporation and each of
its directors in the lawsuit captioned Civil Action No. 18671 filed in the Court
of Chancery in the State of Delaware on February 12, 2001 (the "Lawsuit").
F. Shareholder desires to sell and transfer to Corporation 873,016
shares (the "Shares") of its Corporation common stock and the Corporation
desires to purchase the Shares, in accordance with the terms and subject to the
conditions of this Agreement.
G. Simultaneously with the execution and delivery of this Agreement,
Shareholder and Corporation are entering into that certain First Amendment to
Sales, Marketing and Distribution Agreement (the "First Amendment") providing
for certain modifications and amendments to the Sales Agreement.
H. By this Agreement, Shareholder and the Corporation intend to, and
do, fully resolve, settle, and compromise the Lawsuit and any and all claims,
suits, actions or demands that Shareholder may have against the Corporation or
any of the members of the Board of
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Directors of the Corporation and that the
Corporation may have against Shareholder as of the date of this Agreement.
I. Simultaneously with the execution and delivery of this Agreement,
Shareholder and the members of the Board of Directors of the Corporation are
entering into a mutual release to resolve, settle, and compromise the Lawsuit
and any and all claims, suits, actions or demands that Shareholder may have
against the members of the Board of Directors of the Corporation and that the
members of the Board of Directors of the Corporation may have against
Shareholder as of the date of this Agreement.
COVENANTS AND AGREEMENTS
NOW, THEREFORE, in reliance on the respective representations and
warranties set forth below and for and in consideration of the foregoing
Recitals, the mutual covenants and agreements set forth below and other good and
valuable consideration, the receipt and adequacy of which are acknowledged,
Shareholder and the Corporation agree as follows:
1. SALE AND PURCHASE OF SHARES. Simultaneously with execution of this
Agreement and upon the terms and subject to the conditions set forth in
this Agreement, Shareholder agrees to sell, assign and transfer the
Shares to the Corporation and the Corporation agrees to purchase the
Shares from Seller, free and clear of any and all liens, pledges, legal
and equitable encumbrances, charges, security interests, limitations,
restrictions, agreements, options to purchase or claims of any kind
whatsoever, other than restrictions imposed by applicable federal and
state securities laws (collectively, the "Liens").
2. DETERMINATION OF PURCHASE PRICE. The aggregate purchase price (the
"Purchase Price") for the Shares is Five Million Five Hundred Thousand
and no/100 ($5,500,000.00) Dollars.
3. PURCHASE OF THE SHARES.
(a) Simultaneously with the execution and delivery of this
Agreement, and subject to the condition that all the
consideration referred to in paragraph (b) below shall be
received by Shareholder on the date of this Agreement, (1)
Shareholder hereby sells, assigns and transfers all of
Shareholder's right, title and interest in and to the Shares
to the Corporation, (2) and the Corporation hereby purchases
the Shares from Shareholder, for the Purchase Price.
(b) Simultaneously with execution and delivery of this Agreement,
the Corporation is paying the Purchase Price by wire transfer
of immediately available funds in an amount equal to
$4,224,919.68 which represents the payment of $5,500,000 for
the Purchase Price for the Shares, reduced by credited amounts
of:
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(i) $**** for the grant of exclusive
distribution rights in the United Kingdom to
be paid by Shareholder to Corporation in
accordance with the First Amendment; and
(ii) $**** , representing the outstanding balance
amount owed to the Corporation by
Shareholder under the Sales Agreement as of
March 31, 2001. The parties agree to work
together to reconcile and finally determine
the outstanding balance owed to the
Corporation by Shareholder within three (3)
business days from the date of this
Agreement. Any additional amounts to be paid
by Corporation to Shareholder or Shareholder
to Corporation, as the case may be, shall be
paid within twenty-four hours of such final
determination by wire transfer to such
account as the receiving party shall so
direct.
(c) The Shares represent more than 50% of the shares of common
stock held by Shareholder as of May 10, 2000, the effective
date of the Corporation's Certificate of Incorporation. The
Corporation and Shareholder acknowledge and agree that,
pursuant to the Corporation's Certificate of Incorporation and
the Investment Agreement, upon the sale of more than 50% of
the shares of common stock held by Shareholder as of May 10,
2000, the Call Period, as that term is defined in the
Certificate of Incorporation (the "Call Period") will
terminate. The Corporation and Shareholder acknowledge and
agree that as a result of the sale under this Agreement, which
sale constitutes more that 50% of the shares held by
Shareholder as of May 10, 2000, the Call Period terminates.
Pursuant to the terms of the Corporation's Certificate of
Incorporation, each outstanding share of the Corporation's
callable common stock shall automatically be converted into
one share of the Corporation's common stock such that there
shall be only one class of stock of the Corporation issued and
outstanding, of which Shareholder will own 396,825 shares (the
"Remaining Shares").
4. RESTRICTIONS ON SHAREHOLDER'S REMAINING SHARES.
(a) Shareholder agrees that it will not sell, transfer, assign or
otherwise dispose of ("Transfer") any of the Remaining Shares
prior to the 90th day after the date of this Agreement,
provided however, that Shareholder may transfer or assign some
or all of the Remaining Shares at any time to an affiliate of
Shareholder or all of the Remaining Shares to Shareholder's
successor in interest.
(b) Subject to the limitation in paragraph 4(a) above, in the
event that Shareholder desires to Transfer any or all of the
Remaining Shares other than to an affiliate of Shareholder or
Shareholder's successor in interest, Shareholder shall give
written notice to the Corporation of the proposed Transfer,
specifying the number of shares proposed to be transferred and
the minimum price and terms at which the Transfer will be
effected. The Corporation shall have a period of five (5)
business
****Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested for the omitted
portion.
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days (the "Five Day Period") to work with its market makers to
assist in effecting an orderly sale of such shares at a price
and on terms greater than or equal to the minimum price and
terms specified by Shareholder. If the number of shares
proposed to be transferred by Shareholder are not completely
sold through the efforts of the Corporation's market makers on
or before expiration of the Five Day Period, Shareholder may
continue to sell the unsold portion of the shares proposed to
be transferred in the notice at or above the price and terms
set forth in its notice or as modified during the Five Day
Period; provided however, that the requirement to provide the
Corporation with notice and an opportunity to assist in an
orderly sale shall again apply if Shareholder proposes to sell
shares on terms less favorable to Shareholder than the price
and terms set forth in the notice, as the same may have been
modified during the Five Day Period.
(c) Notwithstanding anything herein to the contrary, any Transfer
pursuant to a registration statement prepared in compliance
with and declared effective under the Securities Act of 1933,
as amended, shall not be subject to the provisions of Section
4(a) or 4(b) of this Agreement.
(d) The certificate or certificates for the Remaining Shares shall
bear a legend indicating that the Remaining Shares are
restricted by the terms of this Section 4; provided, however,
that if Shareholder effects a Transfer in accordance with the
provisions of this Section 4 to an individual or entity other
than an affiliate of Shareholder or Shareholder's successor in
interest, the certificate evidencing such shares shall not
bear a restrictive legend indicating that such shares are
restricted by the terms of this Section 4.
5. SHAREHOLDER'S REPRESENTATIONS AND WARRANTIES. Shareholder covenants,
represents and warrants to the Corporation as follows:
(a) As of the date of this Agreement, Shareholder has valid and
marketable title to the Shares, and owns them free and clear
of any Liens;
(b) Sale, transfer and delivery of the Shares to the Corporation
in accordance with this Agreement will vest title to all of
the Shares in the Corporation, free and clear of any Liens;
(c) Shareholder acknowledges and agrees that this sale, transfer
and purchase of the Shares terminates Shareholder's right to
cause the Corporation to redeem its callable common stock;
(d) Shareholder has full legal right, power and authority to enter
into this Agreement and to sell the Shares to the Corporation
in accordance with the terms and conditions of this Agreement;
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(e) This Agreement has been duly executed and delivered by
Shareholder and is a valid and binding obligation of
Shareholder enforceable in accordance with its terms, and
(f) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i)
conflict with or violate any provision of the articles of
organization or bylaws of Shareholder, or of any law,
ordinance or regulation or any decree or order of any court or
administrative or other governmental body which is either
applicable to, binding upon or enforceable against
Shareholder; or (ii) result in any breach of or default under
any mortgage, contract, agreement, indenture, will, trust or
other instrument which is either binding upon or enforceable
against Shareholder.
6. CORPORATION'S REPRESENTATIONS AND WARRANTIES. The Corporation
covenants, represents and warrants to Shareholder as follows:
(a) The Corporation has full legal right, power and authority to
enter into this Agreement and buy the Shares in accordance
with the terms and conditions of this Agreement;
(b) This Agreement has been duly executed and delivered by the
Corporation and is a valid and binding obligation of the
Corporation enforceable in accordance with its terms;
(c) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i)
conflict with or violate any provision of the Certificate of
Incorporation or bylaws of the Corporation, or of any law,
ordinance or regulation or any decree or order of any court or
administrative or other governmental body which is either
applicable to, binding upon or enforceable against the
Corporation; or (ii) result in any breach of or default under
any mortgage, contract, agreement, indenture, will, trust or
other instrument which is either binding upon or enforceable
against the Corporation; and
(d) The Chief Financial Officer and Treasurer of the Corporation
has determined that, immediately after the purchase of the
Shares, the Corporation will have assets sufficient to pay off
its debts as they become due in the usual course of business
and the Corporation's total assets will not be less than its
total liabilities.
7. TERMINATION AND CONTINUATION OF EXISTING AGREEMENTS. Except as provided
below, any and all agreements between Shareholder and Corporation,
including but not limited to, the Investment Agreement, as amended, and
the Governance Agreement shall be deemed terminated, null and void and
of no further force or effect, provided, however that the following
agreements and clauses remain in full force and effect:
(a) The Mutual Confidentiality Agreement dated December 14, 1999;
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(b) The Confidentiality Agreement dated December 7, 2000;
(c) Section 2 of that Amended and Restated Shareholders Agreement,
dated as of January 25, 2000, to which Shareholder, the
Corporation and certain other holders of the Corporation's
stock are parties to, which section grants certain
registration rights to Shareholder; and
(d) The Sales Agreement shall continue in effect as amended by the
First Amendment to be signed and delivered contemporaneously
with this Agreement.
8. RELEASES.
(a) Shareholder and its successors, assigns and legal
representatives, hereby waive, release, discharge, settle and
acquit the Corporation and its shareholders, officers,
directors, employees and agents (collectively, and together
with the Corporation, the "Corporation Affiliated Parties")
from any debts, claims, demands, causes of action,
controversies, promises, agreements or obligations of any
kind, type or description whatsoever, including the Lawsuit,
which Shareholder has had, now has or may in the future have
as to the Corporation Affiliated Parties as the result of
each, any or all claims of any kind, type or nature
whatsoever, liquidated or unliquidated, mature or not matured,
known, unknown or unknowable which Shareholder has had, now
has or may in the future have against the Corporation
Affiliated Parties as a result of or relating directly or
indirectly to any matter, act, omission, transaction or
occurrence occurring on or prior to the date of this
Agreement.
(b) The Corporation and its successors, assigns and legal
representatives, does hereby waive, release, discharge, settle
and acquit Shareholder and its shareholders, officers,
directors, employees and agents (collectively, and together
with Shareholder, the "Shareholder Affiliated Parties") from
any debts, claims, demands, causes of action, controversies,
promises, agreements or obligations of any kind, type or
description whatsoever, which the Corporation has had, now has
or may in the future have as to the Shareholder Affiliated
Parties as the result of each, any or all claims of any kind,
type or nature whatsoever, liquidated or unliquidated, mature
or not matured, known, unknown or unknowable which the
Corporation has had, now has or may in the future have against
Shareholder as a result of or relating directly or indirectly
to any matter, act, omission, transaction or occurrence
occurring on or prior to the date of this Agreement.
(c) It is the intent of Shareholder and the Corporation to make a
general release in favor of each other, except for the
enforcement of this Agreement and for those agreements
referenced in Section 7(a)-(d) of this Agreement. Nothing
contained herein shall be deemed to limit the generality of
the releases contained herein. It is expressly understood and
agreed to that it is the intent of the Corporation and
Shareholder to enter into a full, complete and mutual release.
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9. MISCELLANEOUS PROVISIONS.
(a) The rights and remedies provided for in this Agreement to
ensure compliance with the terms and conditions of this
Agreement shall be cumulative, and shall be in addition to all
rights and remedies otherwise available to the parties to
ensure compliance with the terms and conditions of this
Agreement, whether such rights and remedies are provided for
under this Agreement, any other agreement or applicable law.
(b) Any notice, demand, request or other communication which is
permitted, required or desired to be given in connection with
this Agreement must be in writing and shall be deemed to be
duly given (i) when personally delivered, (ii) two (2)
business days after being deposited in the United States mail,
certified or registered, return receipt requested, postage
prepaid, (iii) one (1) business day after being sent via a
reputable nationwide overnight courier service guaranteeing
next business day delivery, or (iv) when faxed to the parties,
with a hard copy to follow in the manner contemplated in
clauses (i), (ii) or (iii) above, in each case to the parties
at the following addresses or fax numbers (or at such other
address or fax number as shall be given in writing to the
parties to this Agreement or their permitted successors or
assigns):
If to the Corporation:
Genomic Solutions Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
With a copy to:
Jaffe, Raitt, Heuer & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx Sugar, Esq.
If to Shareholder:
PerkinElmer, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx
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With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(c) No waiver of any breach of any agreement or provision in this
Agreement shall be deemed a waiver of any preceding or
succeeding breach of this Agreement or of any other agreement
or provision contained in this Agreement. No extension of time
for performance of any obligation or act shall be deemed an
extension of time for performance of any other obligation or
act.
(d) This Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective heirs,
representatives, successors and permitted assigns.
(e) If any party commences an action against any other party to
enforce any of the terms, covenants, conditions or provisions
of this Agreement, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys'
fees, costs and expenses incurred in connection with the
prosecution or defense of such action from the losing party.
(g) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware
without regard to conflicts of law principles thereof. Each of
the parties hereto (i) consents to submit itself to the
personal jurisdiction of any federal court located in the
State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement, (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and
(iii) agrees that it will not bring any action relating to
this Agreement in any court other than a federal court sitting
in the State of Delaware or a Delaware state court.
(h) The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their intent,
and no rule of strict construction shall be applied against
any party. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context otherwise requires.
(i) This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which
together will constitute one and the same
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instrument. Copies (photostatic, facsimile or otherwise) of
signatures to this Agreement shall be deemed to be originals
and may be relied on to the same extent as the originals.
(j) The headings in this Agreement are for reference purposes only
and will not in any way affect the meaning or interpretation
of this Agreement.
(k) Each party to this Agreement shall be responsible for any
expenses incurred by it in connection with the negotiation and
performance of this Agreement, including legal and accounting
fees.
(l) Shareholder shall promptly execute and file with the Chancery
Court all necessary documents to dismiss the Lawsuit with
prejudice and without costs to either Shareholder or the
Corporation.
(m) The Corporation hereby covenants to use its best efforts to
register and qualify the Corporation's common stock for
listing on the Nasdaq National Market and to use its best
efforts to prepare and file a registration statement or an
amendment to the Corporation's existing registration statement
under the Securities and Exchange Act of 1934, as amended (the
"1934 Act"), to register the Corporation's common stock under
the 1934 Act.
(n) Any press releases relating to this Agreement and the
dismissal of the Lawsuit shall not be issued without the prior
written approval of Shareholder and the Corporation, which
approval shall not be unreasonably withheld, provided,
however, that the parties may issue such a press release to
the extent that the parties' legal counsel determines that it
is required by law or legal process, including, without
limitation, as required by the U.S. securities laws and the
rules and regulations promulgated thereunder.
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IN WITNESS WHEREOF, the parties have executed this Settlement, Release
and Stock Purchase Agreement as of the date first written above.
PERKINELMER, INC.
By: Xxxxxxxx Xxxxxxx
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Its: Senior Vice President
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GENOMIC SOLUTIONS INC.
By: Xxxxxxx X. Xxxxxxxx
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Its: President and Chief Executive Officer
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