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EXHIBIT 10.10
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 31st day of January, 2000, between
ChromaVision Medical Systems, Inc., a Delaware corporation (the "Company"), and
incuVest LLC, a Delaware limited liability company (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
1. Agreement Purchase Shares. The Purchaser will purchase up to
$5,000,000 in aggregate principal amount of shares of Common Stock of the
Company at the option and upon the request of the Company from time to time
between the date hereof and December 28, 2001 at the prices, on the dates and
subject to the limitations set forth below. Nothing in this Agreement shall
obligate the Company to exercise any such option or make any such request.
2. Prices. The purchase price of the shares to be purchased pursuant to
this Agreement shall be equal to the average of the closing prices per share of
the Common Stock on the Nasdaq National Market for each of the twenty trading
days immediately preceding the giving of the notice of the Closing Day pursuant
to Section 4. In no event however, will the per share price be less than $7 per
share nor more than $14 per share. In the event the shares of Company Common
Stock are no longer quoted on the Nasdaq National Market, the purchase price
shall be determined in like manner by reference to the principal market where
the shares are then quoted for each day in the twenty day trading period. If the
shares do not trade on any of the twenty trading days referred above, that day
shall be ignored in calculating the average.
3. Amounts To Be Purchased. The Company will have the right to request
that the Purchaser purchase shares having up to the maximum aggregate purchase
price set forth below during the periods set forth below:
(a) $2,000,000 on a Closing Day between March 30, 2001 and
June 29, 2001;
(b) $4,000,000 on a Closing Day between July 1, 2001 and
September 28, 2001 less the number of shares, if any, purchased
pursuant to (a) above; and
(c) $5,000,000 on a Closing Day between October 1, 2001 and
December 28, 2001 less the number of shares, if any, purchased pursuant
to (a) and (b) above.
The failure of the Company to exercise its option to request the purchase of
shares during any of the periods set forth above shall not affect its right to
purchase shares during any later period, except that in no event will the
Company have the right to request the purchase of shares on a Closing Day after
December 28, 2001.
4. Dates of Purchase. Purchaser shall purchase the shares after receipt
of each written request from the Company on the date specified in each written
request (a "Closing Day") specifying the number of shares to be purchased
delivered by the Company to Purchaser pursuant to this Agreement, provided that
the day specified is a business day not less than ten business days after the
delivery of the notice. Purchaser acknowledges that the Company will
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have the right to exercise its option to make requests for purchases of shares
on multiple occasions within the time periods set forth in this Agreement so
long as the aggregate purchase price of shares to be purchased on any such
occasion exceeds $1,000,000.
5. Closing of Purchases. The closing of each purchase and sale of
shares shall be held on the Closing Day at the offices of Purchaser, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 a.m. local time. At the closing the Company
will deliver to the Purchaser a certificate evidencing the shares to be
purchased against delivery of the purchase price by the Purchaser in immediately
available funds by wire transfer to the account of the Company specified in a
writing which the Company will deliver to the Purchaser at least two business
days prior to each Closing Day. The certificate evidencing the shares will be
delivered at the closing upon receipt by the Company of confirmation from its
bank that the purchase has been received.
6. Representations. Warranties and Covenants of the Company. The
Company hereby represents and warrants to the Purchaser as follows:
6.1. Organization and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation.
6.2. Issuance, Sale and Delivery of the Shares. The shares to be
purchased pursuant to this Agreement have been duly authorized and, when issued,
delivered and paid for in the manner set forth in this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable. No preemptive rights
or other rights to subscribe for or purchase shares of Common Stock or other
securities of the Company exist with respect to the issuance and sale of the
shares to be purchased pursuant to this Agreement. No further approval or
authority of the stockholders or the Board of Directors of the Company will be
required for the issuance and sale of the shares to be issued pursuant to this
Agreement.
6.3. Due Execution, Delivery and Performance of the Agreement. The
Company has full legal right, corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This Agreement has
been unanimously approved and authorized by a special committee of the Board of
Directors of the Company, and this Agreement has been executed and delivered by
the Company. The making and performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not violate any
provision of the Certificate of Incorporation or Bylaws of the Company, and will
not result in the creation of any lien, charge, security interest or encumbrance
upon any assets of the Company pursuant to the terms or provisions of, or will
not conflict with, result in the breach or violation of, or constitute, either
by itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or their respective
properties may be bound or affected and in each case or in the aggregate which
would have a material adverse effect on the financial condition or business of
the Company or, to the Company's knowledge, a violation of any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
the Company or any its subsidiaries or their respective properties. No consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the
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execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby, except for compliance with the blue sky laws and federal
securities laws applicable to the offering of the shares to be purchased
pursuant to this Agreement. Assuming the valid execution of this Agreement by
the Purchaser, this Agreement constitutes the valid and binding obligation of
the Company, 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).
6.4. Transfer Taxes. On each Closing Day, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the issuance and sale of the shares to be purchased pursuant to this Agreement
on that date hereunder will be, or will have been, fully paid or provided for by
the Company and all laws imposing such taxes will be or will have been fully
complied with.
6.5 Finders' or Brokers' Fees. The Company is not, nor will it be,
obligated for any finders' or brokers' fee or commission in connection with this
transaction.
7. Representations, Warranties and Covenants of the Purchaser. The
Purchaser hereby severally represents and warrants to, and covenants with, the
Company that:
7.1 Status of Purchaser. The Purchaser is knowledgeable, sophisticated
and experienced in making, and is qualified to make, decisions with respect to
investments in shares constituting an investment decision like that involved in
the purchase of the shares pursuant to this Agreement, including investments in
securities issued by the Company, and has requested, received, reviewed and
considered all information it deems relevant in making an informed decision to
purchase the shares.
7.2 Investment Intent. The Purchaser will be acquiring the shares
purchased pursuant to this Agreement in the ordinary course of its business and
for its own account for investment only and with no present intention of
distributing any of the Shares or any arrangement or understanding with any
other persons regarding the distribution of such shares within the meaning of
Section 2(11) of the Securities Act of 1933.
7.3 Restrictions on Transfer. The Purchaser will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
shares purchased pursuant to this Agreement except in compliance with the
Securities Act of 1933 and the rules and regulations thereunder.
7.4 Status of Shares as Restricted Securities. The Purchaser
understands that the shares to be purchased pursuant to this Agreement are
characterized as "restricted securities" under the Securities Act of 1933,
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under that Act and applicable regulations
thereunder such securities may be resold without registration under the Act only
in certain limited circumstances. The Purchaser is familiar with Rule 144 of the
Securities and Exchange Commission, as presently in effect, and understands the
resale limitations imposed thereby and
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by the Securities Act of 1933, including those imposed on "affiliates" of an
issuer, and understands that, except as provided in Section 8, the Company is
under no obligation to register any of the securities sold hereunder.
7.5 Legend on Shares. The Purchaser agrees that the certificates for
the shares to be purchased pursuant to this Agreement shall bear the following
legend (in addition to any legend required under applicable state securities
laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR UNDER THE SECURITIES LAWS OF ANY STATE. SUCH SHARES MAY NOT
BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 UNLESS EITHER
(i) THE COMPANY RECEIVES AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION OR
(ii) THE SALE OF SUCH SECURITIES IS EXEMPT FROM SUCH REGISTRATION
PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 144."
In addition, the Purchaser agrees that the Company may place stop transfer
orders with its transfer agent with respect to such certificates. The
appropriate portion of the legend and the stop transfer orders will be removed
promptly upon delivery to the Company of such satisfactory evidence as
reasonably may be required by the Company that such legend or stop orders are
not required to ensure compliance with the Securities Act.
7.6 Due Execution, Delivery and Performance of This Agreement. The
Purchaser represents and warrants to, and covenants with, the Company that (a)
the Purchaser 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 and (b) this Agreement constitutes the valid and binding
obligation of the 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).
7.7 Finders' or Brokers' Fees. The Purchaser is not, nor will it be,
obligated for any finders' or brokers' fee or commission in connection with this
transaction.
8. Registration of the Shares. The Purchaser shall have no rights under
the Registration Rights Agreement dated September 28, 2000 to which the Company
and the Purchaser are parties (the "Prior Registration Rights Agreement") with
respect to the shares issued pursuant to this Agreement. However, the parties
are entering into a second Registration Rights Agreement dated as of the same
date as this Agreement relating to shares of Company Common Stock to be issued
pursuant to this Agreement.
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9. Mutual Release. The Company and the Purchaser each hereby releases
and discharges the other from any and all causes of action, losses, damages,
expenses and claims of any kind arising out of or relating to the provisions of
the Stock Purchase Agreement made as of September 28, 2000 between them, except
that nothing herein shall constitute a release or discharge of the rights and
obligations of the parties with respect to the Prior Registration Rights
Agreement insofar as it relates to the shares of Common Stock of the Company
issued to Purchaser pursuant to that Stock Purchase Agreement. Each party
acknowledges and agrees that the provisions of this Section 9 constitute the
resolution of disputed claims and that nothing in this Agreement shall be deemed
to constitute an admission by either party that the claims of the other party
have any merit. Each party further acknowledges and agrees that this release
includes all claims referred to herein, whether known or known, liquidated or
unliquidated. Each of the parties hereby waives the provisions of Section 1542
of the California Civil Code, which provides:
"A general release does not extend to claims which the
creditor does not know to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the creditor."
Purchaser acknowledges that this Agreement is entered into to settle a
claim by the Company that Purchaser was obligated to purchase shares of the
Company's Common Stock on December 29, 2000 for an aggregate purchase price of
$5,000,000 under the Stock Purchase Agreement made as of September 28, 2000.
Without the Purchaser's admitting that the Company's claim has merit, the
Purchaser agrees that its obligation to purchase the shares pursuant to this
Agreement is entered into to settle that claim, is unconditional and will not be
affected by any change in the business, financial condition, results of
operations or prospects of the Company, whether occurring before or after this
Agreement. Purchaser further acknowledges that the Company has made no
representation or warranty, express or implied, to the Purchaser except as
specifically set forth in this Agreement and has provided to the Purchaser all
information and documents and answered all questions asked by Purchaser in order
for Purchaser to evaluate this Agreement and the risks to it of the transactions
contemplated hereby.
10. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be personally delivered, mailed by
first-class registered or certified airmail (postage prepaid) or sent by
facsimile or nationally recognized overnight express courier (shipping charges
prepaid), and shall be deemed given when so mailed or when received if
personally delivered or otherwise sent and addressed as follows:
(a) if to the Company, to:
ChromaVision Medical Systems. Inc.
00000 Xxxxx Xxxxxxx
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx
Attn: Xxxxx X. Xxxxxx
Telephone facsimile: (000) 000-0000
or to such other person at such other place as the Company
shall designate to the Purchaser in writing in the manner set
forth above; and
(b) if to the Purchaser, to
incuVest LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX
Attention: Xxxxxxx Xxxxxx
Telephone facsimile no. (000) 000-0000
or at such other address or as the Purchaser shall designate
to the Company in writing in the manner set forth above.
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11. Entire Agreement and Modification. This Agreement sets forth the
entire agreement of the parties with respect to the subject matter hereof and
supersede all term sheets, discussions, comments, negotiations and other prior
or contemporaneous understandings of any kind. This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by the
Company and the Purchaser, and no right or obligation hereunder may be waived
except pursuant to a written instrument signed by the party making the waiver.
This Agreement is the result of negotiations between the parties and their
respective counsel, and any rule of construction that an agreement shall be
interepreted against the party that drafted the agreement shall not apply to
this Agreement.
12. 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.
13. 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.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of California (excluding the
provisions of California relating to choice of law).
15. Costs of Litigation. In the event of any litigation arising under
or in connection with this Agreement, the prevailing party shall be entitled to
recover its costs incurred in connection therewith, including court costs and
reasonably attorneys' and experts' fees.
16. 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 party.
17. Fees and Expenses. Each party shall pay its own legal fees and
other expenses incurred in connection with the preparation, execution and
delivery of this Agreement and the issuance and purchase of the shares of
Company Common Stock to be purchased pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
CHROMAVISION MEDICAL SYSTEMS. INC.
By: /s/ XXXXX X'XXXXX
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Name: Xxxxx X'Xxxxx
Title: Exec. V.P. & CFO
INCUVEST, LLC
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title:
Address:
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