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EXHIBIT 10.2
EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
by and among
TRIPATH IMAGING, INC.,
and
MILLENNIUM PHARMACEUTICALS, INC.
and
mHOLDINGS TRUST
dated as of July 31, 2001
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT dated as of July 31, 2001 (the
"AGREEMENT") is made by and among TRIPATH IMAGING, INC. ("TRIPATH"), a
corporation organized under the laws of the State of Delaware having its
principal offices at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, MILLENNIUM
PHARMACEUTICALS, INC. ("MILLENNIUM"), a corporation organized under the laws of
the State of Delaware, having its principal offices at 00 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 and mHOLDINGS TRUST (the "TRUST"), a business
trust organized under the laws of the Commonwealth of Massachusetts and an
indirect, wholly-owned subsidiary of Millennium. The Trust and Millennium are
hereinafter collectively referred to as the "PURCHASERS" and each as a
"PURCHASER".
R E C I T A L
TriPath desires to sell to the Purchasers, and the Purchasers desire to
purchase from TriPath, shares of TriPath's common stock on the terms described
herein.
NOW THEREFORE, in consideration of the premises and of the covenants
herein contained, the parties hereto mutually agree as follows:
SECTION 1. Authorization for Sale of the Shares. Subject to the terms
and conditions of this Agreement, and in consideration of Millennium's entering
into the License Agreement (as defined in Section 6.5) and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, TriPath has authorized the sale to the Purchasers of 400,000
shares of the Common Stock, par value $0.01 per share (the "COMMON STOCK"), of
TriPath at a purchase price per share of $0.01 USD. Collectively, the shares of
Common Stock which may be purchased pursuant to this Section 1 are referred to
herein as the "SHARES."
SECTION 2. Sale of the Shares. TriPath shall sell to the Purchasers,
and the Purchasers shall purchase from TriPath, upon the terms and conditions
hereinafter set forth, the Shares for a cash purchase price (the "CASH AGGREGATE
PURCHASE PRICE") of $4,000.00 USD and such other consideration with respect to
Millenium's entering into the License Agreement.
SECTION 3. Delivery of the Shares at the Closing. The closing of the
purchase and sale of the Shares (the "CLOSING") shall occur on July 31, 2001
(the "CLOSING DATE"). Subject to the terms and conditions of this Agreement, at
the Closing, Millennium shall pay to TriPath an amount in cash or by wire
transfer equal to the Cash Aggregate Purchase Price, and TriPath shall deliver
to Millennium one or more stock certificates representing the Shares, registered
in the name of the Trust.
SECTION 4. Representations and Warranties of TriPath. TriPath
represents and warrants to the Purchasers except as described on the Schedules
delivered to the Purchasers by TriPath on the date hereof, as follows:
4.1. Organization and Qualification. TriPath and each TriPath
Subsidiary (as defined below) is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has corporate or similar power and authority
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to conduct its business as currently conducted. TriPath and each TriPath
Subsidiary is duly qualified and licensed as a foreign corporation to do
business, and is in good standing (and has paid all relevant franchise or
analogous taxes), in each jurisdiction where the character of its assets owned
or held under lease or the nature of its business makes such qualification
necessary, except where the failure to so qualify or be licensed could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect upon the financial condition, operating results, assets, customer
or supplier relations, employee relations or business prospects of TriPath and
TriPath Subsidiaries taken as a whole (an "MAE"). Schedule 4.1 sets forth a
complete and correct list of each TriPath Subsidiary. As used in this Agreement,
a "TRIPATH SUBSIDIARY" means a corporation, limited liability company,
partnership, business association, or other entity with respect to which TriPath
has, directly or indirectly, ownership of or rights with respect to securities
or other interests having the power to elect a majority of such entity's board
of directors or analogous or similar governing body, or otherwise having the
power to direct the management, business or policies of that corporation,
limited liability company, partnership, business association or other entity.
4.2. Authorized Capital Stock. As of June 28, 2001, the authorized
capital stock of TriPath consisted of (a) 49,000,000 shares of Common Stock, of
which 34,325,362 are validly issued and outstanding, fully paid and
non-assessable, and (b) 1,000,000 shares of undesignated preferred stock, $0.01
par value per share, none of which are issued and outstanding. As of June 28,
2001, there were 4,571,325 shares of Common Stock reserved for issuance under
TriPath's 1996 Equity Incentive Plan (the "Equity Plan"), and options to
purchase 2,811,077 shares of Common Stock were outstanding as of such date under
the Equity Plan. As of June 28, 2001, there were 300,000 shares of Common Stock
reserved for issuance under TriPath's 1997 Director Stock Option Plan (the
"Director Plan"), and options to purchase 20,000 shares of Common Stock were
outstanding as of such date under the Director Plan. As of June 28, 2001, there
were 350,713 shares of Common Stock reserved for issuance upon exercise of
options to purchase 350,713 shares of Common Stock issued under the NeoPath 1989
Stock Option Plan (the "1989 Plan"), and which options were assumed by TriPath
in its acquisition of NeoPath, Inc. As of June 28, 2001, there were 124,156
shares of Common Stock reserved for issuance upon exercise of options to
purchase 124,156 shares of Common Stock issued under the NeoPath 1999 Plan (the
"1999 Plan"), and which options were assumed by TriPath in its acquisition of
NeoPath, Inc. As of June 28, 2001, there were 103,527 shares of Common Stock
reserved for issuance upon exercise of options to purchase 103,527 shares of
Common Stock issued under the NeoPath Director Plan (the "NeoPath Director
Plan"), and which options were assumed by TriPath in its acquisition of NeoPath,
Inc. As of June 28, 2001, there were warrants outstanding to purchase 5,302,283
shares of Common Stock at an average exercise price of $11.15 per share. All of
the issued and outstanding shares of TriPath's capital stock have been duly
authorized and validly issued and are fully paid and nonassessable and have been
issued in compliance with applicable Federal and state securities laws. TriPath
owns, either directly or indirectly through one or more TriPath Subsidiaries,
all of the capital stock or other equity interests of the TriPath Subsidiaries
free and clear of all liens, charges, claims, security interests, restrictions,
options, proxies, voting trusts or other encumbrances, other than transfer
restrictions imposed by applicable laws, statutes, rules, regulations, orders or
other restrictions of any court or governmental entity applicable to the
businesses conducted by TriPath and the TriPath Subsidiaries. Except as
described herein or on Schedule 4.2, (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) granted by TriPath
or a TriPath
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Subsidiary to purchase or acquire any shares of TriPath's or a TriPath
Subsidiary's capital stock is authorized or outstanding, (ii) there is not any
commitment or offer of TriPath or a TriPath Subsidiary to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any shares of its capital stock, any evidences
of indebtedness or assets of TriPath or any TriPath Subsidiary, (iii) neither
TriPath nor any TriPath Subsidiary has any obligation (contingent or otherwise)
to purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect thereof, and (iv) there are no restrictions on the transfer of TriPath's
or a TriPath Subsidiary's capital stock other than those arising from securities
laws or under this Agreement. Except as contemplated by this Agreement or
otherwise disclosed in Schedule 4.2, no person or entity is (i) entitled to any
preemptive or similar right with respect to the issuance of any capital stock of
TriPath or any TriPath Subsidiary, (ii) entitled to any rights with respect to
the registration of any capital stock of TriPath or any TriPath Subsidiary under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), or (iii) to
TriPath's knowledge, a party to any voting trust, stockholders agreements,
proxies, agreements or other undertakings in effect with respect to the voting
or transfer of any of TriPath's or any TriPath Subsidiary's securities.
4.3. Consents; Due Execution; Delivery and Performance of the
Agreement. TriPath's execution, delivery and performance of this Agreement (a)
has been duly authorized under Delaware law by all requisite corporate action by
TriPath, (b) will not violate any Law or the Restated Certificate of
Incorporation, as amended, or the Restated By-laws of TriPath or other
organizational documents of any TriPath Subsidiary or any provision of any
material indenture, mortgage, agreement, contract or other material instrument
to which TriPath or any TriPath Subsidiary is a party or by which any of their
respective properties or assets is bound as of the date hereof, (c) require any
consent by any person or entity under, constitute or result (upon notice or
lapse of time or both) in a breach of any term, condition or provision of, or
constitute a default or give rise to any right of termination or acceleration
under any such indenture, mortgage, agreement, contract or other material
instrument or result in the creation or imposition of any lien, security
interest, mortgage, pledge, charge or other encumbrance, of any material nature
whatsoever, upon any properties or assets of TriPath or any TriPath Subsidiary,
or (d) will not constitute a "Change in Control" of TriPath under any agreement,
contract or commitment to which an officer of TriPath and TriPath are parties or
under any of the Compensation and Benefit Plans (as hereinafter defined). The
issuance, sale and delivery of the Shares in accordance with this Agreement have
been duly authorized and reserved for issuance, as the case may be, by all
necessary corporate action on the part of TriPath. The Shares when so issued,
sold and delivered against payment therefor in accordance with the provisions of
this Agreement, will be duly and validly issued, fully paid and non-assessable.
Upon its execution and delivery, and assuming the valid execution thereof by the
Purchasers, the Agreement will constitute a valid and binding obligation of
TriPath, enforceable against TriPath in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
For purposes of this Agreement, "Compensation and Benefit Plans" shall
mean all bonus, vacation, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock
purchase, restricted stock and stock option plans, all
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employment or severance contracts, all medical, dental, disability, health and
life insurance plans, all other material employee benefit and fringe benefit
plans, contracts or arrangements and any applicable "change of control" or
similar provisions in any plan, contract or arrangement sponsored, maintained or
contributed to by TriPath or any TriPath Subsidiary for the benefit of officers,
former officers, employees, former employees, directors, former directors, or
the beneficiaries of any of the foregoing or pursuant to which TriPath, any of
the TriPath Subsidiaries or any ERISA Affiliate has or may have any liability or
obligation, contingent or otherwise.4.4. Exempt Transaction. Subject to the
accuracy of the Purchasers' representations in Section 5 of this Agreement, the
issuance of the Shares will constitute a transaction exempt from the
registration requirements of Section 5 of the Securities Act in reliance upon
Regulation D under the Securities Act.
4.5. Disclosure. Neither this Agreement nor the schedules hereto
contain any Untrue Statement of a material fact or omit to state a material fact
necessary in order to make each statement contained herein or therein not
misleading. There is no fact which TriPath has not disclosed to the Purchasers
in writing and of which any of its directors or executive officers is aware
(other than general economic conditions) and which has had or would reasonably
be expected to have an MAE. TriPath is not aware of any event occurring on or
prior to the Closing Date (other than the transactions effected hereby or in
connection herewith) that would require the filing of, or with respect to which
TriPath intends to file, a Form 8-K after such date. TriPath is not aware of any
fact, the occurrence or non-occurrence of which would materially impair its
ability to perform its obligations under the License Agreement, in accordance
with its terms, other than securing additional financing or general market
conditions.
4.6. Additional Information. All Exchange Act Reports when filed did
not contain any Untrue Statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading. TriPath has timely made all filings with the Securities and Exchange
Commission (the "SEC") which it is required to make, and TriPath has not
received any request from the SEC to file any amendment or supplement to any
such reports.
4.7. No Material Changes. As of the date hereof, except as disclosed on
Schedule 4.7, there has been no event, occurrence, development or state of
circumstances or facts which has had or could reasonably be expected to have,
individually or in the aggregate, an MAE since the filing date of TriPath's last
Exchange Act Report.
4.8. Governmental Consents. Except as disclosed in any Exchange Act
Report, no permit, consent, approval or authorization of, or declaration to or
filing with, any governmental authority or with NASDAQ is required, which has
not been obtained, in connection with the execution, delivery and performance by
TriPath of this Agreement, the consummation of any of the transactions
contemplated hereby, or the conduct or operation of the business of TriPath and
the TriPath Subsidiaries.
4.9. Compliance with Laws; Litigation. Neither TriPath nor any TriPath
Subsidiary has violated any law or any governmental regulation or requirement
which violation could reasonably be expected to have an MAE. Except as disclosed
on Schedule 4.9, there is no claim, suit, litigation, investigation, arbitration
or other proceeding pending or threatened against
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TriPath, the TriPath Subsidiaries or any of its or their executive officers
which could reasonably be expected to have an MAE.
4.10. Financial Statements. The audited consolidated balance sheet as
of December 31, 2000 and the related audited consolidated statement of
operations and cash flows for the year ended December 31, 2000, and the
unaudited interim consolidated balance sheet for the three months ended March
31, 2001 and the related unaudited interim consolidated statements of operations
and cash flows for the three months ended March 31, 2001, of TriPath and the
TriPath Subsidiaries as set forth in the applicable Exchange Act Report fairly
present, in conformity with GAAP applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of TriPath
and the TriPath Subsidiaries as of the dates thereof and their consolidated
results of operations and cash flows for the periods then ended (subject to
normal year-end adjustments in the case of any unaudited interim financial
statements). Neither TriPath nor any of the TriPath Subsidiaries has any
liability or obligation, except (i) liabilities and obligations in the
respective amounts reflected or reserved against in the consolidated balance
sheet of TriPath and the TriPath Subsidiaries as of March 31, 2001 or not
required under generally accepted accounting principles to be reflected in such
balance sheet, or (ii) liabilities and obligations incurred in the ordinary
course of business since March 31, 2001 which could not, individually or in the
aggregate, reasonably be expected to have an MAE.
4.11. Material Contracts. Each of the agreements, contracts, leases and
commitments listed as an exhibit to any report filed by TriPath with the SEC is
a legal and valid agreement, binding on TriPath or a TriPath Subsidiary, as the
case may be, pursuant to its terms, and is in full force and effect, and none of
TriPath, such TriPath Subsidiary or, to the knowledge of TriPath, any other
party thereto is in default or breach, in each case in any material respect,
and, no event or circumstance with respect to any such agreement, contract,
lease or commitment has occurred that, with notice or lapse of time or both,
would reasonably be expected to constitute an MAE.
4.12. Finder's Fees. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of TriPath or any of its affiliates which might be entitled to any fee or
commission from TriPath or any of its affiliates upon consummation of the
transactions contemplated by this Agreement.
4.13. Listing on NASDAQ. The Common Stock is listed for quotation on
the Nasdaq National Market ("NASDAQ"), and trading in the Common Stock on such
market has not been suspended. TriPath is in full compliance with the continued
listing criteria of Nasdaq, and does not reasonably anticipate that the Common
Stock will lose its listing on Nasdaq, whether by reason of the transactions
contemplated by this Agreement or the other transaction documents contemplated
hereby, or otherwise and is not aware of any inquiry by or received any notice
from Nasdaq, or any other self-regulatory or governmental entity, regarding any
failure or alleged failure by TriPath to comply with such criteria or any other
requirements of such entity or applicable law.
4.14. S-3 Eligibility. As of the date of this Agreement, TriPath is
eligible to register securities for resale with the SEC under Form S-3
promulgated under the Securities Act.
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SECTION 5. Representations and Warranties of the Purchaser.
5.1. Investment Representations. Each Purchaser represents and warrants
to TriPath that:
(a) such Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares presenting an investment decision like that involved in
the purchase of the Shares, including investments in securities issued by
companies comparable to TriPath, and has requested, received, reviewed and
considered all information it deems relevant in making an informed decision to
purchase the Shares;
(b) such Purchaser is acquiring the Shares in the ordinary
course of its business and for its own account for investment only and with no
present intention of distributing any of such Shares or any arrangement or
understanding with any other persons regarding the distribution of such Shares.
(c) such Purchaser understands that the Shares are "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from TriPath in an exempt transaction pursuant to Regulation D under
the Securities Act and that under such laws and applicable regulations such
securities may be resold without registration under the Securities Act only in
certain limited circumstances. In this connection each such Purchaser represents
that it is familiar with Regulation D and SEC Rule 144, as presently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act;
(d) such Purchaser qualifies as an "accredited investor"
within the meaning of Rule 501(a)(3) of Regulation D promulgated under the
Securities Act, was not formed for the specific purpose of acquiring the Shares
and is domiciled in the Commonwealth of Massachusetts;
(e) such Purchaser agrees to resell the Shares only pursuant
to registration under the Securities Act, or pursuant to an available exemption
from registration and agrees not to engage in hedging transactions with regard
to such Securities unless in compliance with the Securities Act; and
(f) such Purchaser understands that the certificates
evidencing the Shares shall bear the following legend unless and until the
resale of the Shares pursuant to an effective Registration Statement or until
the Shares may be sold under Rule 144 without restrictions.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT , OR, AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO TRIPATH THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER SUCH ACT. HEDGING
TRANSACTIONS INVOLVING
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THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH SUCH ACT.
5.2. Due Execution, Delivery and Performance of the Agreement. Each
Purchaser further represents and warrants to, and covenants with, TriPath that
(a) such Purchaser is an entity duly organized and validly existing and in good
standing under the laws of its jurisdiction of organization and has full right,
power, authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, (b) the execution,
delivery and performance of this Agreement will not violate any law or the
charter documents of such Purchaser or any other corporation of which such
Purchaser owns at least 50% of the outstanding voting stock (a "PURCHASER
SUBSIDIARY") or any provision of any material indenture, mortgage, agreement,
contract or other material instrument to which such Purchaser or any Purchaser
Subsidiary is a party or by which such Purchaser, any Purchaser Subsidiary, or
any of their respective properties or assets is bound as of the date hereof, or
result in a breach of or constitute (upon notice or lapse of time or both) a
default under any such indenture, mortgage, agreement, contract or other
material instrument or result in the creation or imposition of any Encumbrance,
of any material nature whatsoever, upon any assets of such Purchaser or any
Purchaser Subsidiary, and (c) upon the execution and delivery of this Agreement,
and assuming the valid execution thereof by TriPath, this Agreement shall
constitute a valid and binding obligation of such Purchaser enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 6. Conditions to the Obligations of the Purchasers.
The obligations of the Purchasers under this Agreement are subject to
the fulfillment, or the waiver by Millennium in its sole discretion, of the
conditions set forth in this Section 6 on or before the Closing Date.
6.1. Accuracy of Representations and Warranties. Each representation
and warranty of TriPath contained in this Agreement shall be true on and as of
the Closing Date with the same effect as though such representation and warranty
had been made on and as of that date.
6.2. Performance. TriPath shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by TriPath prior to or at the Closing.
6.3. Opinion of Counsel. The Purchasers shall have received an opinion
from Xxxxxx & Dodge LLP, counsel to TriPath, dated as of the Closing Date,
addressed to the Purchasers, and substantially in the form attached hereto as
Exhibit A.
6.4. Consents and Approvals. TriPath shall have delivered to Millennium
all of the required consents or approvals.
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6.5. License Agreement. TriPath and Millennium shall have executed the
Research Use License Agreement (Colon Cancer)(the "LICENSE AGREEMENT") dated as
of the date hereof, between Millennium and TriPath.
6.6. Certificates and Documents. TriPath shall have delivered to
counsel to Millennium:
(a) a certificate of the Secretary or Assistant Secretary of
TriPath dated as of the Closing Date, certifying as to (i) the incumbency of
officers of TriPath executing this Agreement, the License Agreement and all
other documents executed and delivered in connection herewith, (ii) a copy of
the By-Laws of TriPath, as in effect on and as of the Closing Date, and (iii) a
copy of the resolutions of the Board of Directors of TriPath authorizing and
approving TriPath's execution, delivery and performance of this Agreement, the
License Agreement and all matters in connection with this Agreement, the License
Agreement and the transactions contemplated hereby and thereby;
(b) a certificate, executed by the President of TriPath as of
the Closing Date, certifying to the fulfillment of all of the conditions to
Millennium's obligations under this Agreement, as set forth in this Section 6.
6.7. Other Matters. All corporate and other proceedings in connection
with the transactions contemplated at the Closing by this Agreement, and all
documents and instruments incident to such transactions, shall be reasonably
satisfactory in substance and form to Millennium and its counsel, and Millennium
and its counsel shall have received all such counterpart originals or certified
or other copies of such documents as they may reasonably request.
SECTION 7. Conditions to the Obligations of TriPath.
The obligations of TriPath under this Agreement are subject to the
fulfillment, or the waiver by TriPath in its sole discretion, of the conditions
set forth in this Section 7 on or before the Closing Date.
7.1. Accuracy of Representations and Warranties. Each representation
and warranty of each Purchaser contained in this Agreement shall be true on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of that date.
7.2. License Agreement. Millennium and TriPath shall have executed the
License Agreement.
7.3. Performance. The Purchasers shall have performed and complied with
all agreements and conditions contained in this Agreement required to be
performed or complied with by the Purchasers prior to or at the Closing.
7.4. Opinion of Counsel. TriPath shall have received an opinion from
Purchasers' counsel, dated as of the Closing Date, addressed to TriPath and
substantially in the form attached hereto as Exhibit B.
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7.5. Certificates of Purchaser. Each Purchaser shall have delivered to
counsel for TriPath:
(a) a certificate of the Secretary or Assistant Secretary of
such Purchaser dated as of the Closing Date, certifying as to (i) the incumbency
of officers of such Purchaser executing this Agreement, the License Agreement
(as applicable) and all other documents executed and delivered in connection
herewith, (ii) a copy of the By-Laws or trust instrument of Millennium and the
Trust, as the case may be, as in effect on and as of the Closing Date, and (iii)
a copy of the resolutions of the Board of Directors of Millennium and the
trustees of the Trust, as the case may be, authorizing and approving such
Purchaser's execution, delivery and performance of this Agreement, the License
Agreement (as applicable) and all matters in connection with this Agreement, the
License Agreement (as applicable) and the transactions contemplated hereby and
thereby or otherwise generally authorizing such Purchaser's execution, delivery
and performance of agreements of the type of this Agreement; and
(b) a certificate, executed by the President or any Senior
Vice President of each of such Purchaser dated as of the Closing Date,
certifying to the fulfillment of all of the conditions to TriPath's obligations
under this Agreement, as set forth in this Section 7.
7.6. Other Matters. All corporate and other proceedings in connection
with the transactions contemplated at the Closing by this Agreement, and all
documents and instruments incident to such transactions, shall be reasonably
satisfactory in substance and form to TriPath and its counsel, and TriPath and
its counsel shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
SECTION 8. Covenants of TriPath.
8.1. Consummation of Agreement. TriPath shall use its reasonable best
efforts to perform and fulfill all conditions and obligations to be performed
and fulfilled by it under this Agreement and further to ensure that to the
extent in its control or capable of influence by it, no breach of any of its
representations, warranties and agreements hereunder or contemplated hereby
occurs or exists on or prior to the Closing to the end that the transactions
contemplated by this Agreement shall be fully carried out in a timely fashion.
8.2. Registration of Shares.
(a) Registration on Form S-3. Subject to the terms and
conditions set forth below, TriPath will use its reasonable best efforts to file
with the SEC, within 15 days after the Closing Date, but in any event, not later
than 30 days after the Closing Date, a registration statement on Form S-3 (the
"REGISTRATION STATEMENT") under the Securities Act covering the resale of any
Registrable Shares (which term shall mean (i) the Shares and (ii) any other
shares of common stock held by the Purchasers or any affiliate (as such term is
defined in Section 144(a)(1) of Rule 144 under the Securities Act) of the
Purchasers on the date hereof), and will use its reasonable best efforts to
cause such Registration Statement to be declared effective by the SEC as soon as
possible thereafter, but in any event within 60 days thereafter, and to keep the
Registration Statement covering the Registrable Shares continuously effective
until the earliest of (i) the date on which the Registrable Shares covered by
such Registration Statement can be
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sold by Purchasers pursuant to Rule 144 in any three month period, (ii) the date
on which all the Registrable Shares covered by such Registration Statement have
been sold, or (iii) the first anniversary of the Closing Date. In connection
with the foregoing, TriPath covenants and agrees that it will:
(i) subject to Section 8.2(b), prepare and file with the SEC
such amendments and supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities Act with
respect to the resale of the Registrable Shares covered by the Registration
Statement until such time as provided in Section 8.2(a) above;
(ii) furnish each Purchaser with such number of copies of such
prospectus as it may reasonably request in order to facilitate the resale of the
Registrable Shares;
(iii) file documents required of TriPath for blue sky
clearance in states specified in writing by the Purchasers; provided, however,
that TriPath shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is now not so qualified or
has not so consented;
(iv) promptly give notice to the Purchasers (1) when a
Prospectus or prospectus supplement or amendment has been filed and, with
respect to the Registration Statement or a post-effective amendment, when the
same has become effective, (2) of any request by the SEC for amendments and
supplements to the Registration Statement or prospectus or for additional
information after the Registration Statement has become effective, (3) of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement, and (4) of the happening of any event that makes any
statement made in the Registration Statement or related prospectus untrue or
that requires the making of any changes in the Registration Statement or
prospectus so that they will not contain 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 under which they were
made, not misleading; and
(v) bear all expenses in connection with the procedures set
forth in paragraphs (i) through (iv) of this Section 8.2(a) and the registration
of the Registrable Shares pursuant to the Registration Statement. The Purchasers
shall be responsible for any brokerage commissions and taxes of any kind
(including, without limitation, transfer taxes) with respect to any disposition,
sale or transfer of the Registrable Shares and for any legal, accounting and
other expenses incurred by the Purchasers.
(b) Suspension Period. Upon receipt of a notice under clauses
(2) through (4) of Section 8.2(b)(iv), the Purchasers shall forthwith
discontinue disposition of the Registrable Shares pursuant to the Registration
Statement until its receipt of copies of the applicable supplemented or amended
prospectus contemplated by Section 8.2(b)(ii) or until the Purchasers are
advised in writing by TriPath that the use of the prospectus may be resumed,
and, if so directed by TriPath, the Purchasers shall deliver to TriPath all
copies, other than one permanent file copy, of the prospectus at the time of
receipt of such notice. TriPath shall use reasonable best efforts to take such
actions, within 60 days after the delivery of a notice under clause (2) through
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(4) of Section 8.2(b)(iv), as are necessary to appropriately revise or
supplement the prospectus or to cause the SEC to lift the stop order; provided,
however, that in no event will the suspension period contemplated by this
sentence exceed (i) 60 days in the aggregate in any three month period and (ii)
120 days in the aggregate during any 12 month period, during which TriPath is
otherwise obligated to keep the Registration Statement effective, and TriPath
will use its reasonable best efforts to minimize the length of any such
suspension period.
(c) Indemnification. For the purpose of this Section 8.2(c),
(i) the term "Selling Stockholder" shall mean the
Purchasers and any officer, director, employee, agent, affiliate or person
deemed to be in control of either Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act;
(ii) the term "Registration Statement" shall mean any
final prospectus, exhibit, supplement or amendment included in or relating to
the registration statement referred to in Section 8.2; and
(iii) the term "Untrue Statement" shall mean any
untrue statement or alleged untrue statement of, or any omission or alleged
omission to state, in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
TriPath agrees to indemnify and hold harmless the Selling Stockholder
from and against any losses, claims, damages or liabilities to which such
Selling Stockholder may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any Untrue
Statement of a material fact contained in the Registration Statement on the
effective date thereof, or arise out of any failure by TriPath to fulfill any
undertaking included in the Registration Statement and TriPath will reimburse
such Selling Stockholder for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that TriPath shall not be liable in any
such case to the extent that such loss, claim, damage or liability arises out
of, or is based upon, an Untrue Statement made in such Registration Statement in
reliance upon and in conformity with written information furnished to TriPath by
or on behalf of the Selling Stockholder specifically for use in preparation of
the Registration Statement, or any statement or omission in any Prospectus that
is corrected in any subsequent Prospectus that was delivered to the Selling
Stockholder prior to the pertinent sale or sales by the Selling Stockholder.
The Purchasers agree to indemnify and hold harmless TriPath (and any
officer, director, employee, agent, affiliate or person deemed to be in control
of TriPath within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively "PURCHASER INDEMNIFIED PERSONS")) from and
against any losses, claims, damages or liabilities to which TriPath (or any such
Purchaser Indemnified Person) may become subject (under the Securities Act or
otherwise), insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon, any Untrue
Statement of a material fact contained in the Registration Statement on the
effective date thereof if such Untrue Statement was made in reliance upon and in
conformity with written information furnished by or on behalf
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of a Purchaser specifically for use in preparation of the Registration
Statement, and the Purchasers will reimburse TriPath (or such Purchaser
Indemnified Person), for any legal or other expenses reasonably incurred in
investigating, defending, or preparing to defend any such action, proceeding or
claim; provided, however, that no Purchaser shall be liable for any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus prior
to the pertinent sale or sales by TriPath.
Promptly after receipt by any indemnified person of a notice of a claim
or the commencement of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 8.2, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person; provided, however, that the indemnifying person shall not
agree to a settlement of any such action without the consent of the indemnified
person, which consent shall not be unreasonably withheld. In no event, however,
shall any indemnifying person be liable with respect to any claims made against
any indemnified person against whom an action is brought unless such indemnified
person shall have notified the indemnifying person in writing within a
reasonable time after the summary or other first legal process giving
information of the nature of the claim shall have been served upon the
indemnified person, if the indemnifying person's ability to defend has been
materially impaired thereby, but failure to notify the indemnifying person of
such claim shall not relieve it from any liability which it may have to any
indemnified person otherwise than on account of its indemnity agreement
contained in this Section 8.2. After notice from the indemnifying person to such
indemnified persons of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any officer, director,
employee, agent, affiliate or person deemed to be in control of such
indemnifying person within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, the indemnified person shall be entitled
to retain its own counsel at the expense of such indemnifying person. It is
understood, however, that any indemnifying person shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits, or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such indemnified parties not having actual or
potential differing interests with such indemnifying person or among themselves.
(d) Information by Selling Stockholder. The Selling
Stockholder shall furnish to TriPath such information regarding such Selling
Stockholder and the distribution proposed by the Selling Stockholder as TriPath
may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement,
including a
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Selling Stockholder questionnaire and shall agree to notify TriPath promptly
following sales pursuant to a Registration Statement.
(e) No Exercise. The Purchasers' registration rights hereunder
shall be exercisable from time to time for so long as a Purchaser or its
affiliates hold the Shares, and shall, notwithstanding the foregoing, not be
exercisable by such holder if it can at such time sell all Shares held by it in
the ensuing three-month period in reliance upon Rule 144 under the Securities
Act.
8.3. Listing. TriPath shall use its reasonable best efforts to cause
the Common Stock to continue to be listed on Nasdaq or any National Securities
Exchange so long as any Shares are held by a Purchaser.
8.4. Rule 144.
(a) So long as any Shares are held by a Purchaser and are not
eligible for sale under Rule 144(k), TriPath shall file all reports required to
be filed by it under the Exchange Act and, shall take such further action as a
Purchaser may reasonably request, all to the extent required to enable a
Purchaser to sell any of the foregoing securities pursuant to and in accordance
with Rule 144 under the Securities Act. Such action shall include, but not be
limited to, making available adequate current public information meeting the
requirements of paragraph (c) of such Rule 144.
(b) At the written request of a Purchaser at any time and from
time to time, TriPath shall furnish to such Purchaser, within three days after
receipt of such request, a written statement confirming TriPath's compliance
with the filing requirements of the SEC set forth in SEC Rule 144 as amended
from time to time.
SECTION 9. Covenants of the Purchasers.
9.1. Consummation of Agreement. Each Purchaser shall use its best
efforts to perform and fulfill all conditions and obligations to be performed
and fulfilled by it under this Agreement and further to ensure that to the
extent in its control or capable of influence by it, no breach of any of its
representations, warranties and agreements hereunder or contemplated hereby
occurs or exists on or prior to the Closing to the end that the transactions
contemplated by this Agreement shall be fully carried out in a timely fashion.
Each Purchaser will take all reasonable actions necessary or desirable to
consummate the transactions contemplated by this Agreement.
SECTION 10. Miscellaneous.
10.1. Notices. Any consent, notice or report required or permitted to
be given or made under this Agreement by one of the parties hereto to the other
shall be in writing, delivered personally or by facsimile (and promptly
confirmed by telephone, personal delivery or courier) or courier, postage
prepaid (where applicable), addressed to such other party at its address
indicated below, or to such other address as the addressee shall have last
furnished in writing to the addressor and shall be effective upon receipt by the
addressee.
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If to TriPath: TriPath Imaging, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Purchaser: to the address set forth below the
Purchaser's name on the signature page hereto
10.2. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof. All
express or implied agreements and understandings, either oral or written,
heretofore made are expressly merged in and made a part of this Agreement.
10.3. Survival of Representations, Warranties and Agreements;
Assignability of Rights. Notwithstanding any investigation made by any party to
this Agreement, all covenants, agreements, representations and warranties made
by TriPath and the Purchasers herein, except as otherwise provided herein, shall
survive the execution of this Agreement, the delivery to the Purchasers of the
Shares being purchased and the payment therefor. Except as otherwise provided
herein, (i) the covenants, agreements, representations and warranties of TriPath
made herein shall bind TriPath's successors and assigns and shall insure to the
benefit of the Purchasers' successors and assigns and (ii) the covenants,
agreements, representations and warranties of the Purchasers made herein shall
bind the Purchasers' successors and assigns and shall inure to the benefit of
TriPath's successors and assigns.
10.4. Assignment. Neither this Agreement nor any of the rights and
obligations contained herein may be assigned or otherwise transferred by any
party without the consent of the other party; provided, however, that either
TriPath or a Purchaser may, without such consent, assign its rights and
obligations under this Agreement (i) to any affiliate, all or substantially all
of the equity interest of which is owned and controlled by such party or its
direct or indirect parent corporation, or (ii) in connection with a merger,
consolidation or sale of substantially all of such party's assets to an
unrelated third party; provided, however, that such party's rights and
obligations under this Agreement shall be assumed by its successor in interest
in any such transaction and shall not be transferred separate from all or
substantially all of its other business assets, including those business assets.
Any purported assignment in violation of the preceding sentence shall be void.
Any permitted assignee shall assume all obligations of its assignor under this
Agreement.
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10.5. Amendments and Waivers. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by TriPath and the
Purchasers. The waiver by either party hereto of any right hereunder or of the
failure to perform or of a breach by the other party shall not be deemed a
waiver of any other right hereunder or of any other breach or failure by said
other party whether of a similar nature or otherwise.
10.6. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
10.7. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
10.8. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (without giving effect to
the choice of law provisions thereof).
10.9. Jurisdiction. The parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement, or the transactions contemplated
hereby shall be brought in the United States District Court for the District of
Delaware or any Delaware state court, so long as one of such courts shall have
subject matter jurisdiction over such suit, action or proceeding, and each of
the parties hereby irrevocably consents to the jurisdiction of such courts (and
of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum.
10.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
10.11. Expenses. Except as otherwise specifically provided herein, each
party shall bear its own expenses in connection with this Agreement.
10.12. Publicity. Neither party hereto shall issue any press releases
or otherwise make any public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of the other
party, except as may be required by applicable law or regulation.
10.13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be executed by their duly authorized representatives as of
the day and year first above written.
TRIPATH IMAGING, INC.
By: /s/ Xxxx X. Xxxxxx, M.D.
-------------------------------------------------
Name: Xxxx X. Xxxxxx, M.D.
Title: President & CEO
MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
Address: 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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mHOLDINGS TRUST
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Address: c/o Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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EXHIBIT A
TELEPHONE: (000) 000-0000 FACSIMILE: (000) 000-0000
FORM OF OPINION OF XXXXXX & DODGE
July , 2001
Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
mHoldings Trust
c/o Millennium Pharmaceuticals, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
RE: SECURITIES PURCHASE AGREEMENT BY AND AMONG TRIPATH IMAGING, INC.,
MILLENNIUM PHARMACEUTICALS, INC. AND MHOLDINGS TRUST
Ladies and Gentlemen:
We are furnishing this opinion to you pursuant to Section 6.3 of the
Securities Purchase Agreement, dated as of July __, 2001 (the "Purchase
Agreement"), between TriPath Imaging, Inc., a Delaware corporation ("TriPath" or
the "Company"), Millennium Pharmaceuticals, Inc., a Delaware corporation
("Millennium") and mHoldings Trust, a Massachusetts business trust (the "Trust")
providing for the purchase of 400,000 shares of the common stock, par value
$0.01 per share, of TriPath by the Trust (the "Shares"). Capitalized terms not
otherwise defined herein have the meanings set forth in the Purchase Agreement.
We have acted as counsel to TriPath in connection with the preparation,
execution and delivery of the Purchase Agreement. We have examined such
documents and made such other investigation as we have deemed appropriate to
render the opinions set forth below. As to matters of fact material to our
opinions, we have relied, without independent verification, on representations
made in the Purchase Agreement and certificates and other inquiries of officers
of TriPath. We also have relied on certificates of public officials.
References to "our knowledge" or equivalent words mean the actual
knowledge of the lawyers in this firm responsible for preparing this opinion
letter after such inquiry as they deemed appropriate.
The opinions expressed below are limited to Massachusetts law, the
Delaware General Corporation Law and the federal law of the United States.
Based upon the foregoing and subject to the additional qualifications
set forth below, we are of the opinion that:
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1. TriPath is validly existing as a corporation and in good
standing under Delaware law and has the corporate power to execute and
deliver the Purchase Agreement and to perform its obligations
thereunder.
2. TriPath has duly authorized, executed and delivered the
Purchase Agreement, and the Purchase Agreement constitutes its valid
and binding obligation enforceable against it in accordance with its
terms.
3. The execution and delivery by TriPath of the Purchase
Agreement does not, and the performance by it of its obligations
thereunder will not (i) violate any law covered by this opinion, (ii)
violate any court order, judgment or decree applicable to it and known
to us, or (iii) violate its charter or by-laws.
4. The Shares, when issued in compliance with the provisions
of the Purchase Agreement, will be validly issued, fully paid and
nonassessable.
5. Based in part upon representations and warranties of each
of Millennium and the Trust set forth in the Purchase Agreement, the
issuance and sale of the Shares in conformity with the Purchase
Agreement are exempt from the registration requirements of Section 5 of
the Securities Act of 1933, as amended.
Our opinions above are subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of general
application affecting the rights and remedies of creditors and to general
principles of equity.
This opinion shall be interpreted in accordance with the Legal Opinion
Principles issued by the Committee on Legal Opinions of the American Bar
Association's Business Law Section as published in 53 Business Lawyer 831 (May
1998).
This opinion is being furnished only to you in connection with the
transaction described above and may not be relied on without our prior written
consent for any other purpose or by anyone else.
Very truly yours,
Xxxxxx & Dodge LLP
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EXHIBIT B
FORM OF OPINION OF COUNSEL FOR MILLENNIUM PHARMACEUTICALS, INC.
July , 2001
TriPath Imaging, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: SECURITIES PURCHASE AGREEMENT BY AND AMONG TRIPATH IMAGING, INC.,
MILLENNIUM PHARMACEUTICALS, INC. AND MHOLDINGS TRUST
Ladies and Gentlemen:
[INSERT INTRODUCTORY LANGUAGE]
Based upon the foregoing and subject to the additional qualifications
set forth below, I am of the opinion that:
1. Millennium is validly existing as a corporation and in good
standing under Delaware law and has the corporate power to execute and
deliver the Purchase Agreement and to perform its obligations
thereunder.
2. The Trust is validly existing as a business trust and in
good standing under Massachusetts law and has the corporate power to
execute and deliver the Purchase Agreement and to perform its
obligations thereunder.
3. Each of Millennium and the Trust has duly authorized,
executed and delivered the Purchase Agreement, and such Purchase
Agreement constitutes its valid and binding obligation enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, moratorium or other laws
affecting the enforcement of creditors' rights in general from time to
time in effect and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law
and regardless of the limitations of the availability of equitable
means).
4. The execution and delivery by each of Millennium and the
Trust of the Purchase Agreement does not, and the performance by it of
its obligations thereunder will not (i) violate any law covered by this
opinion, (ii) violate any court order, judgment or decree applicable to
it and known to me, or (iii) violate its Certificate of Incorporation,
Declaration of Trust, by-laws, or other charter documents, as
applicable.
This opinion is being furnished only to you in connection with the
transaction described above and may not be relied on without the Purchasers'
prior written consent for any other purpose or by anyone else.
