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EXHIBIT 99.4
PURCHASE AND SALE AGREEMENT
INTRODUCTION
This Purchase and Sale Agreement (the "Agreement") is made and entered
into on this 21st day of December, 2000 by and among XL Vision, Inc., a Delaware
corporation (the "Company"), Safeguard Scientifics, Inc., a Pennsylvania
corporation ("SSI"), Safeguard Delaware, Inc. a Delaware corporation ("SDI", and
together with SSI, "Safeguard"), incuVest LLC, a Delaware limited liability
company ("incuVest", and together with Safeguard, the "Purchasers").
BACKGROUND
The Company owns shares of capital stock of eMerge Interactive, Inc.
("eMerge") and Chromavision Medical Systems, Inc. ("Chromavision") in the
amounts set forth in Item B on EXHIBIT A hereto.
As of the date hereof, the Company owes PNC Bank, National Association
("PNC Bank") an aggregate amount of $6,034,125 (the "PNC Debt") in respect of
principal, interest and fees for indebtedness incurred under that certain
Amended and Restated Loan and Security Agreement, dated November 21, 1997, as
amended, between the Company and PNC Bank and as evidenced by that certain
Amended and Restated Revolving Note dated April 29, 1999 in the original
principal amount of $6,000,000 (the "PNC Note"). As a consequence of that
certain Amended and Restated Limited Guaranty and Suretyship Agreement entered
into by SSI, Safeguard Scientifics (Delaware), Inc. and SDI on December 30, 1998
(the "Guaranty") and that certain Amended and Restated Contribution and Sharing
Agreement dated October 31, 2000 between SSI and incuVest (the "Contribution
Agreement"), Safeguard and incuVest have agreed to guarantee the PNC Debt.
Safeguard desires to purchase from the Company, and the Company desires to
sell to Safeguard the numbers of shares of eMerge Class A common stock and
Chromavision common stock as are identified in Item G on EXHIBIT A hereto
(collectively, the "Safeguard Acquired Shares") for a total purchase price as
identified in Item F on such EXHIBIT A (the "Safeguard Purchase Price").
incuVest desires to purchase from the Company, and the Company desires to sell
to incuVest the numbers of shares of eMerge Class A common stock and
Chromavision common stock as are identified in Item G on EXHIBIT A hereto
(collectively, the "incuVest Acquired Shares", and together with the Safeguard
Acquired Shares, the "Acquired Shares") for a total purchase price as identified
in Item F on such EXHIBIT A (the "incuVest Purchase Price", and together with
the Safeguard Purchase Price, the "Aggregate Purchase Price"). The Company
desires, and each Purchaser desires for the Company, immediately to remit the
Aggregate Purchase Price to PNC Bank in full satisfaction of the PNC Debt.
NOW, THEREFORE, in consideration of and on the basis of and in reliance
upon the accuracy of the representations and warranties and the performance of
the covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
Sale of Acquired Shares. Subject to the terms and conditions
hereinafter set forth, including the payment of the Safeguard Purchase Price by
Safeguard and of the incuVest Purchase Price by incuVest in accordance with
Section 2.1 below, the Company hereby sells, assigns, conveys, transfers, and
delivers to SDI the Safeguard Acquired Shares and to incuVest the incuVest
Acquired Shares.
Deliveries. On the date hereof the parties shall make the following
deliveries and take the following actions:
Payment of Purchase Price. On the date hereof on behalf of the
Company, (i) Safeguard shall pay in immediately available funds the Safeguard
Purchase Price, and (ii) incuVest shall pay in immediately available funds the
incuVest Purchase Price as provided for in this Section 2.1. As an accommodation
to the Company and in order to expeditiously effect the satisfaction of the PNC
Debt, each Purchaser covenants to direct payment on behalf
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of the Company of the Aggregate Purchase Price (i.e., Safeguard, in respect of
the Safeguard Purchase Price, and incuVest, in respect of the incuVest Purchase
Price) by wire transfer of immediately available funds to PNC Bank, it being the
legal intent of the parties hereto that such payment of the Aggregate Purchase
Price shall be remitted to PNC Bank in full satisfaction of the PNC Debt.
Payment of the Aggregate Purchase Price shall be made in accordance with the
payment instructions set forth in the instrument attached hereto as EXHIBIT B.
Delivery of Acquired Shares. The Company shall deliver free and
clear of all pledges, liens, transfer and stamp tax obligations, encumbrances,
claims and other charges thereon of every kind, the certificates for the
Safeguard Acquired Shares and the incuVest Acquired Shares to SDI and incuVest,
respectively, in negotiable form, duly endorsed in blank, or with separate stock
transfer powers attached thereto and signed in blank. The Company's execution
and delivery of this Agreement constitutes its instruction to Xxxxxx, Xxxxx &
Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, which firm currently holds
for the benefit of the Company certificates evidencing the Acquired Shares, to
release such certificates to Purchasers in accordance with the Instruction
Letter attached hereto as EXHIBIT C. The parties hereto agree to cause the
transfer agents for the securities transferred hereunder to re-certificate, if
necessary, the residual shares not transferred to Purchasers hereunder.
Contribution Agreement. Safeguard and incuVest will execute and
deliver to each other the Acknowledgement in the form of EXHIBIT D attached
hereto which will terminate the effect of the Contribution Agreement with
respect to the PNC Bank of the Loan and Security Agreement.
Representations and Warranties of the Company. To induce the Purchasers to
enter into this Agreement and to consummate the transactions contemplated
hereby, the Company hereby represents and warrants to the Purchasers as follows:
Organization and Standing. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, and has all requisite power and authority to carry on its business
as it has been and is now being conducted and to own, lease and operate its
properties.
Authority and Binding Effect. The Company has the full power and
authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement (i) have been duly and validly
authorized by all necessary corporate action required on the part of the
Company, and (ii) do not contravene or violate the Certificate of Incorporation
or bylaws of the Company. This Agreement has been duly and validly executed and
delivered by the Company and assuming due execution and delivery by each of the
Purchasers, constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as enforcement may
be limited by general principles of equity whether applied in a court of law or
a court of equity and by bankruptcy, insolvency, and similar laws affecting
creditors' right and remedies generally.
Ownership of Acquired Shares. The Company is the lawful record
and beneficial owner of the Acquired Shares, free and clear of all pledges,
liens, encumbrances, claims and other charges thereon of every kind, including,
without limitation any agreements, subscriptions, options, warrants, calls,
commitments or rights (contingent or otherwise) of any character granting to any
person any interest in or right to acquire any of the Acquired Shares from the
Company at any time, or upon the happening of any stated event.
Representations and Warranties of Purchasers. To induce the Company to
enter into this Agreement and to consummate the transactions contemplated
hereby, each Purchaser hereby severally represents and warrants to the Company
with respect to itself as follows:
Organization and Standing. Such Purchaser is an entity duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its respective organization, and such Purchaser has all
requisite power and authority to carry on its business as it has been and is now
being conducted and to own, lease and operate its properties.
Authority and Binding Effect. Such Purchaser has the full power
and authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by such Purchaser (i) has been duly
and validly authorized by all necessary corporate or member action, as the case
may be, required on the
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part of such Purchaser, and (ii) does not contravene or violate either SSI's or
SDI's charter (in the case of Safeguard) or incuVest's Certificate of Formation
or operating agreement (in the case of incuVest). This Agreement has been duly
and validly executed and delivered by such Purchaser and assuming due execution
and delivery by the Company, constitutes the legal, valid and binding obligation
of such Purchaser, enforceable against it in accordance with its terms, except
as enforcement may be limited by general principles of equity whether applied in
a court of law or a court of equity and by bankruptcy, insolvency, and similar
laws affecting creditors' right and remedies generally.
Investment Intent. Such Purchaser acknowledges and understands
that none of the Acquired Shares have been registered under the Securities Act
of 1933 (the "Act") nor any other securities or blue sky laws based upon the
representations set forth in this Section 4.3. Such Purchaser, to the extent
acquiring any Acquired Shares hereunder, is doing so solely for its own account
and not with a view to, or for resale in connection with, any distribution
thereof, except pursuant to an effective registration statement under the Act or
pursuant to and in compliance with an exemption from such registration afforded
by the Act or the rules and regulations promulgated thereunder. Each such
Purchaser is an "accredited investor" as that term is defined in Regulation D
promulgated under the Act and (i) has such knowledge, sophistication and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its acquisition of the Acquired Shares and (ii) is able
to bear the economic risks and lack of liquidity in holding the Safeguard
Acquired Shares and the incuVest Acquired Shares, as applicable.
Further Assurances. At the request of either Purchaser, the Company from
time to time shall execute, acknowledge and deliver to such Purchaser such other
instruments of conveyance and transfer and will take such other actions and
execute and deliver such other documents, certifications and further assurances
as may be necessary in order to vest more effectively in such Purchaser, or to
put such Purchaser more fully in possession of, any of the Acquired Shares or as
may otherwise be reasonably required to carry out the intent of the parties
hereunder.
Expenses; Sales and Transfer Taxes. The parties hereto shall pay their own
expenses incidental to the preparation of this Agreement, the carrying out of
the provisions of this Agreement and the consummation of the transactions
contemplated hereby. The Company shall pay all documentary, stamp, sales,
transfer, excise and other taxes incurred in connection with this Agreement and
the transactions contemplated hereby.
Headings; Gender; "Person". All section headings contained in this
Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not affect in any way the meaning or interpretation hereof.
Words used herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context requires. Any
reference to a "person" herein shall include an individual, firm, corporation,
partnership, trust, governmental authority or body, association, unincorporated
organization or any other entity.
Contents of Agreement; Parties in Interest; Etc. This Agreement sets forth
the entire understanding of the parties hereto with respect to the transactions
contemplated hereby. It shall not be amended or modified except by a written
instrument duly executed by each of the parties hereto. Any and all previous
agreements and understandings between or among the parties regarding the subject
matter hereof, whether written or oral are superseded by this Agreement.
Exhibits. The Exhibits hereto are intended to be and hereby are
specifically made a part of this Agreement.
Notices. All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent by mail,
facsimile message or Federal Express or other comparable delivery service. Any
notices shall be deemed given upon the earlier of the date when received at, or
the third day after the date when sent by registered or certified mail or the
day after the date when sent by Federal Express to, the address or fax number
set forth below, unless such address or fax number is changed by notice to the
other party hereto:
If to the Company, at 00000 000xx Xxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, facsimile
number (000) 000-0000 or at such other address designated by the Company to the
other parties hereto in writing;
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If to Safeguard, at 800 The Safeguard Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, XX
00000, facsimile number (000) 000-0000 or at such other address designated by
Safeguard to the other parties hereto in writing;
If to incuVest, at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, facsimile
number (000) 000-0000 or at such other address designated by Safeguard to the
other parties hereto in writing.
Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware without regard to its
provisions concerning conflict of laws.
Successors. This Agreement shall be binding upon and shall inure to the
benefit of the respective successors, executors, personal representatives, heirs
and assigns of each of the parties hereto.
Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be binding as of the date first written above, and all of
which shall constitute one and the same instrument. Each such copy shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Purchase
and Sale Agreement on the date first written above.
XL VISION, INC.
By:______________________________
Title:
SAFEGUARD SCIENTIFICS, INC.
By:______________________________
Title:
SAFEGUARD DELAWARE, INC.
By:______________________________
Title:
INCUVEST LLC
By:______________________________
Title:
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EXHIBIT A
EXHIBIT A to
PURCHASE AND SALE AGREEMENT
CLOSING DATE - DECEMBER 21, 2000
A. PURCHASE PRICE CALCULATION:
CLOSING PRICE CVSN EMRG
---- ----
December 14,2000 $ 2.3750 $ 4.2500
December 15,2000 $ 2.6875 $ 4.0625
December 18,2000 $ 2.7500 $ 3.8750
December 19,2000 $ 2.4688 $ 3.7188
December 20,2000 $ 2.2500 $ 3.1875
5 DAY AVERAGE CLOSING PRICE $ 2.5063 $ 3.8188
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PURCHASE PRICE @ 85% $2.1303 $ 3.2459
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B. TOTAL SHARES OWNED BY XL VISION 1,432,114 2,567,403
C. AVAILABLE SHARES 954,743 1,797,240
D. AGGREGATE VALUE of AVAILABLE SHARES $2,033,909 $5,833,744
E. RATIO of AGGREGATE VALUE of AVAILABLE SHARES 25.85% 74.15%
F. AGGREGATE PURCHASE PRICE $6,034,125
SAFEGUARD PURCHASE PRICE $3,017,063
INCUVEST PURCHASE PRICE $3,017,062
G. SHARES PURCHASED - TOTAL 732,244 1,378,400
SAFEGUARD ACQUIRED SHARES 366,122 689,200
INCUVEST ACQUIRED SHARES 366,122 689,200
