EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "AGREEMENT") dated as of April
7, 2000 is entered into by and between the Investors set forth on SCHEDULE A
hereto (each a "PURCHASER" and collectively, the "PURCHASERS"), and Vista
Medical Technologies, Inc., with an address at 0000 Xxxxxxx Xxxxxxx, Xxxxx X,
Xxxxxxxx, XX 00000 (the "COMPANY").
WHEREAS, the Company desires to sell, on the terms contained herein, in
the aggregate, an aggregate of five million six hundred fifty-four thousand four
hundred eleven (5,654,411) shares (the "Shares") of the Company's common stock,
par value of $0.01 per share (the "Common Stock") at a per share purchase price
of $0.85 (the "Per Share Purchase Price"); and
WHEREAS, the Purchasers desire to purchase, on the terms contained
herein, the Shares at the Per Share Purchase Price, in the amounts set forth
beside each Purchaser's name on SCHEDULE A hereto.
THEREFORE, in consideration of the mutual promises contained herein,
the Company and the Purchasers hereby agree as follows:
1. PURCHASE AND SALES OF SHARES. Upon the basis of the representations
and warranties and subject to the terms and conditions set forth herein, the
Company agrees to issue and sell the Shares to the Purchasers on the Closing
Date (as herein defined) at the Per Share Purchase Price and, upon the basis of
the representations and warranties and subject to the terms and conditions set
forth herein, the Purchaser agrees to purchase the Shares from the Company on
the Closing Date at the Per Shares Purchase Price. Such purchase and sale is
referred to herein as the "Offering."
2. ADJUSTMENT TO PURCHASE PRICE. Notwithstanding the foregoing, in the
event that the Company sells any shares of Common Stock (or securities that may
be converted into or exchanged for shares of Common Stock) in an original
issuance for a per share price which is less than the Per Share Purchase Price,
at any time during the ninety-day period commencing on the Closing Date, the
Company shall have the obligation to promptly notify and pay to each Purchaser
an amount equal to the product of (x) the aggregate difference between (i) the
Per Share Purchase Price and (ii) the per share price of such additional shares
of the Company's Common Stock so sold (or securities that may be converted into
or exchanged for shares of Common Stock), multiplied by (y) the number of Shares
purchased hereunder. The Company may pay such amount, at its option, in either
cash or additional shares of the Company's Common Stock. If the Company elects
to pay in Common Stock, the Common Stock shall be valued at the price at which
the Company sells any such shares (or securities that may converted into or
exchanged for shares) of Common Stock and will be payable within five (5) days
of such other sale.
The foregoing adjustment shall not apply to shares of Common Stock
issued pursuant to stock options, warrants outstanding as of the date hereof,
purchases by the Company of outstanding existing stock options or shares traded
on the NASDAQ stock market in the secondary market.
3. CLOSING. The closing of the Offering shall take place within five
(5) days hereof upon the satisfaction of the conditions set forth in Paragraph 7
herein, as coordinated by the parties, or on such other date or at such other
time and place as the Company and the Purchasers may mutually agree upon Such
time and date of the closing is referred to herein as the "CLOSING DATE." Upon
payment by each Purchaser of its respective portion of the Purchase Price in
immediately available funds to the Company, by wire transfer to an account
specified by the Company, the Company will promptly cause its transfer agent to
deliver to the Purchasers certificates representing the shares of Common Stock
being purchased by each Purchaser in such denominations and registered in such
names as each such Purchaser shall have requested not less two business days
prior to the Closing Date. The Company shall provide facsimile copies of the
certificates to the Purchaser on the Closing Date.
4. NASDAQ LISTING. As soon as practicable after the Closing Date, the
Company shall take all requisite action to list the Shares for trading on the
Nasdaq SmallCap Market.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants, as of the date hereof and as of the Closing Date, as
follows:
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(a) No consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the Company
or any of the Company's affiliates is required for the execution of this
Agreement or the sale of the Shares to the Purchaser other than approval of
filings with the Securities and Exchange Commission and those States where
necessary.
(b) Neither the sale of the Shares nor the performance of the Company's
other obligations pursuant to this Agreement will violate, conflict with, result
in a breach of, or constitute a default (or an event that, with the giving of
notice or the lapse of time or both, would constitute a default or trigger any
right of a third party to acquire equity interests in the Company or cause
mandatory adjustment of the price at which a outstanding security of the Company
is convertible into Common Stock) under (i) the Certificates of Incorporation or
the Bylaws of the Company, (ii) any decree, judgment, order or determination of
any court, governmental agency or body, or arbitrator having jurisdiction over
the Company or any of the Company's properties or assets; (iii) any law, treaty,
rule or regulation applicable to the Company (other than the federal securities
laws, representations and warranties with respect to which are made by the
Company, or the requirements of NASDAQ); or (iv) the terms of any bond,
debenture, note or other evidence of indebtedness, or any agreement, stock
option or similar plan by which the Company is bound or to which any property of
the Company is subject, in any event above, which violation, conflict or breach
would have a material adverse effect on the Company.
(c) The Company has taken all corporate action required to authorize
the execution and delivery of this Agreement and the performance of its
obligation hereunder and will use the proceeds of sale for general corporate
purposes and to launch its general surgery product line;
(d) The Company has duly authorized the issuance of the Shares and,
when issued and delivered to and paid for by the Purchasers in accordance with
the terms hereof, the Common Stock will be duly and validly issued, fully paid
and non assessable and will not constitute "restricted securities" within the
meaning of Rule 144(a)(3) promulgated under the Securities Act of 1933, as
amended (the "ACT");
(e) The Company's Prospectus dated April 4, 2000 included in the
Company's Registration Statement on Form S-1 (attached hereto as EXHIBIT A) and
the Company's Annual Report on Form 10-K for its Fiscal Year Ended December 31,
1999 (collectively, the "DISCLOSURE DOCUMENTS") have been delivered to each
Purchaser and, as of the date of each such respective document do not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made with respect to
the Company;
(f) The Company's Financial Statements for the year ended December 31,
1999, as amended, included in the Disclosure Documents comply, comply in all
material respects with the applicable requirements of the Securities Exchange
Act of 1934, as amended, and have been prepared, and fairly present in all
material respects the consolidated financial condition, results of operations
and cash flows of the Company and its subsidiaries at the respective dates and
for the respective periods indicated, in accordance with generally accepted
accounting principles consistently applied throughout such periods (except as
noted therein);
(g) Except as set forth in the Disclosure Documents or pursuant to this
Agreement, since December 31, 1999 the Company has not incurred any material
liabilities, direct or contingent, except in the ordinary course of business and
there has been no material adverse change in the properties, business, results
of operations or financial condition of the Company; and
(h) As of April 6, 2000 (without giving effect to the sale of Shares of
Common Stock hereunder), the Company had a total of 13,857,075 shares of Common
Stock issued and outstanding; approximately 1,957,970 shares of Common Stock
were subject to outstanding options granted under the Company's 1997 Stock
Option/Stock Issuance Plan; approximately 55,631 shares of Common Stock were
reserved for issuance under the Company's Employee Stock Purchase Plan; and
74,264 shares were reserved for issuance pursuant to exercise of outstanding
warrants, and there will be no changes in these numbers prior to the Closing
Date except as a result of shares issued in connection with the conversion or
exchange of any securities of the Company or stock options granted under or
shares issued under any existing stock option plan or other existing employee
bonus or existing incentive plan of the Company.
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(i) Except as would not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects of
the Company,
(i) the Company is in compliance with all applicable
Environmental Laws (as defined below);
(ii) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance
with the requirements of such permits authorizations and approvals;
(iii) there are no pending or, to the best knowledge of the
Company, threatened Environmental Claims (as defined below) against the
Company; and
(iv) under applicable law, there are not circumstances with
respect to any property or operations of the Company that are
reasonably likely to form the basis of an Environmental Claim against
the Company.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company which,
singly or in the aggregate, might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, or which, singly or in the aggregate, might
materially and adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement, nor, to the
best knowledge of the Company, is there any reasonable basis therefor. The
Company is not in default with respect to any judgement, order or decree of any
court or governmental agency or instrumentality which, singly or in the
aggregate, would have a material adverse effect on the assets, properties or
business of the Company.
(k) The Company, to the best of its knowledge in the course of diligent
inquiry, owns or is licensed to use all patents, patent applications,
inventions, trademarks, trade names, applications for registration of
trademarks, service marks, service xxxx applications, copyrights, know-how,
manufacturing processes, formulae, trade secrets, license and rights in any
thereof and any other intangible property and assets that are material to the
business of the Company as now conducted and as proposed to be conducted (in
this Agreement called the "Proprietary Rights"), or is seeking, or will seek, to
obtain rights to use such Proprietary Rights that are material to the business
of the Company as proposed to be conducted.
(i) The Company does not have any knowledge of, and the
Company has not given or received any notice of, any pending conflicts
with or infringement of the rights of others with respect to any
Proprietary Rights or with respect to any license of Proprietary Rights
which are material to the business of the Company.
(ii) No action, suit, arbitration, or legal, administrative or
other proceeding, or investigation is pending, or, to the best
knowledge of the Company, threatened, which involves any Proprietary
Rights, nor, to the best knowledge of the Company, is there any
reasonable basis therefor.
(iii) The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local, foreign
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, and has not
entered into or is not a party to any contract which restricts or
impairs the use of any such
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Proprietary Rights in a manner which would have a material adverse
effect on the use of any of the Proprietary Rights.
(iv) The Company has not received written notice of any
pending conflict with or infringement upon such third-party proprietary
rights.
(v) The Company has not entered into any consent,
indemnification, forbearance to xxx or settlement agreement with
respect to Proprietary Rights other than in the ordinary course of
business. No claims have been asserted by any person with respect to
the validity of the Company's ownership or right to use the Proprietary
Rights and, to the best knowledge of the Company, there is no
reasonable basis for any such claim to be successful.
(vi) The Company has complied, in all material respects, with
its obligations relating to the protection of the Proprietary Rights
which are material to the business of the Company used pursuant to
license.
(vii) The to best knowledge of the Company, no person is
infringing on or violating the Proprietary Rights.
(l) The Company possesses and is operating in compliance with all
material licenses, certificates, consents, authorities, approvals and permits
from all state, federal, foreign and other regulatory agencies or bodies
necessary to conduct the businesses now operated by it, and the Company has not
received any notice of proceedings relating to the revocation or modification of
any such permit or any circumstance which would lead it to believe that such
proceedings are reasonably likely which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company.
(m) The Company has good and marketable title to its properties, free
and clear of all material security interests, mortgages, pledges, liens,
charges, encumbrances and claims of record. The properties of the Company are,
in the aggregate, in good repair (reasonable wear and tear excepted), and
suitable for their respective uses. Any real property held under lease by the
Company is held under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the conduct of the
business of the Company. The Company owns or leases all such properties as are
necessary to its business or operations as now conducted.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Each Purchaser
severally represents and warrants to the Company, as of the date hereof and as
of the Closing Date, as follows:
(a) no consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the Purchaser
is required for the execution of this Agreement or the purchase of the Shares by
the Purchaser;
(b) neither the purchase of the Shares nor the performance of the
Purchaser's other obligations pursuant to this Agreement will violate, conflict
with, result in a breach of, or constitute a default under (i) the charter
documents of the Purchaser; (ii) any decree, judgment, order or determination of
any court, governmental agency or body, or arbitrator having jurisdiction over
the Purchaser or any of the Purchaser's properties or assets; (iii) any law,
treaty, rule or regulation applicable to the Purchaser; or (iv) the terms of any
bond, debenture, note or other evidence of indebtedness, or any agreement, stock
option or similar plan by which the Purchaser is bound or to which any property
of the Purchaser is subject, in any event above, which violation, conflict or
breach would have a material adverse effect on the Purchaser;
(c) the Purchaser has taken all corporate action required to authorize
the execution and delivery of this Agreement and the performance of its
obligations hereunder; and
7. CONDITIONS OF CLOSING.
(a) The obligations of each party hereunder shall be subject to the
accuracy in all material respects of the representations and warranties of the
other party hereto as of the are hereof and as of the Closing Date, as if such
representations and warranties had been made again on and as of the Closing
Date.
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(b) The obligations of the Purchasers hereunder shall be subject to:
(i) The Company shall have adopted an amendment to its bylaws
in substantially the form attached hereto as EXHIBIT A.
(ii) The Purchaser shall have received the legal opinion of
counsel to the Company, in the form set forth in EXHIBIT B hereto, with such
changes thereto as may be agreed upon by the Purchaser and such counsel.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Purchaser,
each person, if any, who controls a Purchaser, within the meaning of Section 15
of the Act and each officer, director, employee and agent of the Purchaser and
of any such controlling person against any and all liabilities, claims, damages
or expenses whatsoever, as incurred arising out of or resulting from any breach
or alleged breach or other violation of any representation, warranty, covenant
or undertaking by the Company contained in this Agreement, and the Company will
reimburse the Purchaser for its reasonable legal and other expenses (including
the reasonable cost of any investigation and preparation, and including the
reasonable fees and expenses of counsel) incurred in connection therewith.
(b) Each Purchaser severally agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act and each officer, director, employee and agent of the
Company and of any such controlling person against any and all losses,
liabilities, claims, damages or expenses whatsoever, as incurred arising out of
or resulting from any breach or alleged breach or other violation or alleged
violation of any representation, warranty, covenant or undertaking by the
Purchaser contained in this Agreement, and the Purchaser will reimburse the
Company for its reasonable legal and other expenses (including the reasonable
cost of any investigation and preparation, and including the reasonable fees and
expenses of counsel) incurred in connection therewith.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
agreements, representations, warranties, indemnities and other statements made
by or on behalf of each party hereto pursuant to this Agreement, as of the date
they were made, shall, unless otherwise specified, survive until the second
anniversary of the Closing Date and shall expire thereafter.
10. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts and such
counterparts shall constitute but one and the same agreement and authorized
signatures may be evidenced to the other party by facsimile copies thereof,
provided that the originally signed signature page of any party is provided to
the other party within two business days after the original execution.
(b) This Agreement shall insure to the benefit of and be binding upon
the parties hereto. This Agreement shall not be assignable by any party hereto
without the prior written consent of the other party hereto and no other person
shall have any right or obligation hereunder. Without limiting the foregoing,
the rights of each Purchaser set forth in Paragraph 3 shall not be transferable
to subsequent purchasers of the Shares. Any assignment contrary to the terms
hereof shall be void and of no force or effect.
(c) This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior agreements or
understandings, whether written or oral, between the parties respecting such
subject matter.
(d) If within 90 days after the Closing Date the Company enters into or
is a party to any agreement to issue additional equity securities (or securities
convertible or exchangeable therefor), the Company shall promptly provide notice
of such agreement to the Purchaser, together with a copy of such agreement.
(e) This Agreement shall be governed by the internal laws of the State
of California.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
VISTA MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, President and Chief Executive Officer
PURCHASER
By: /s/ Xxxx Xxxxxxx
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Its:
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PURCHASER
STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Xxxx X. Xxxxxx
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Its: Investment Director
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PURCHASER
DOMAIN PARTNERS III, L.P.
By: One Xxxxxx Square Associates III, L.P.
By: /s/ Xxxxxxxx X. [Illegible]
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Its: General Partner
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SCHEDULE A
--------------------------------------------------- ------------------------------- -------------------------
INVESTORS SHARES CONSIDERATION
--------------------------------------------------- ------------------------------- -------------------------
The State of Wisconsin Investment Board
Lake Terrace 3,125,000 $2,656,250.00
000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Securities Analyst
Fax #: (000) 000-0000
Tel # : (000) 000-0000
--------------------------------------------------- ------------------------------- -------------------------
Domain Partners III, L.P.
One Xxxxxx Square 2,352,941 $1,999,999.85
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxxx
Fax #: (000) 000-0000
Tel #: (000) 000-0000
--------------------------------------------------- ------------------------------- -------------------------
SBIC Partners, L.P.
c/o Xxxxxxx Xxxxxxx & Xxxxx 176,470 $149,999.50
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Fax #: (000) 000-0000
Tel #: (000) 000-0000
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TOTAL: 5,654,411 $4,806,249.35
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EXHIBIT A
AMENDMENT TO BYLAWS
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EXHIBIT B
FORM OF LEGAL OPINION
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