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EXHIBIT 4.5
SERIES C PREFERRED STOCK PURCHASE AGREEMENT dated as of December
29, 1997, among GENOMIC SOLUTIONS INC., a Delaware corporation (the
"Corporation"), and each of the investors identified on Schedule I, (each, an
"Investor", and, collectively, the "Investors").
The Corporation desires to sell to the Investors and the Investors
desire to purchase from the Corporation an aggregate of up to 4,070,339 shares
of the Corporation's Series C Convertible Preferred Stock, $.001 par value (the
"Series C Preferred Stock"), with the voting powers, designations, preferences,
limitations, and relative participating, optional or other rights set forth in
the Amended and Restated Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") attached as EXHIBIT A, on the terms and subject
to the conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
ISSUANCE AND SALE OF THE PREFERRED
SHARES
1.1 AUTHORIZATION OF ISSUANCE OF PREFERRED STOCK; RESERVATION OF COMMON
STOCK.
(a) (a) Subject to the terms and conditions hereof, the
Corporation has authorized the issuance of an aggregate of up to 4,070,339
shares of Series C Preferred Stock (the "Securities") at a per share price of
$1.75.
(b) (b) The Corporation shall reserve 4,070,339 shares of
Common Stock, $.001 par value ("Common Stock"), for issuance upon conversion of
the Securities.
1.2 SALE OF SECURITIES.
Simultaneously with the execution and delivery of this Agreement, the
Corporation is issuing and selling that number of Securities to the Investors,
as set forth on Schedule I attached hereto at a per share price of $1.75;
provided however, that in the case of Chase Venture Capital Associates, L.P.,
3,015,375 shares of Series C Preferred Stock shall be issued and sold on the
date hereof and 356,053 shares of Series C Preferred Stock shall be issued and
sold on January 6, 1998.
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ARTICLE II
DELIVERY; ADDITIONAL CLOSINGS
2.1 Delivery.
Except as set forth in Section 1.2 hereof, concurrent with execution
and delivery of this Agreement by an Investor hereunder, the Corporation is
delivering to such Investor a certificate representing the Securities registered
in such Investor's name equal to the number of Securities set forth opposite the
name of such Investor on Schedule I attached hereto, against payment of the
purchase price for such Securities by (at the option of the Corporation) either
cashier's check payable in immediately available funds to the order of the
Corporation or by a wire transfer of funds to the order of the Corporation.
2.2 ADDITIONAL CLOSINGS.
Subject to Section 1.2 hereof, the Corporation may sell up to the
balance of the authorized shares of Series C Preferred Stock not sold on the
date hereof, as it shall elect, at a price not less than $1.75 per share. Upon
execution of a signature page counterpart and without need for an amendment
hereto except to add such investor's name to Schedule I attached hereto, any
such investor shall become a party to this Agreement, shall be deemed an
"Investor" for purposes of this Agreement and shall have the rights and
obligations of an Investor hereunder. At each additional closing hereunder, at
the request of the Investor, the Corporation shall deliver to the Investor
acquiring Securities at such closing an officer's certificate certifying to such
Investor that there has been no material adverse change in the business,
operations or conditions of the Corporation since the date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
Except as otherwise expressly indicated in the Schedules attached
hereto, the Corporation hereby represents and warrants to the Investors as
follows:
3.1 ORGANIZATION AND STANDING; CHARTER AND BY-LAWS.
The Corporation is a corporation duly organized, validly exiting and in
good standing under the laws of the State of Delaware, and the Corporation is
authorized to exercise all of its corporate powers, rights and privileges. The
Corporation has all required corporate power and authority to own its property,
to carry on its business as presently conducted or contemplated. True and
accurate copies of the Certificate of Incorporation and the By-laws of the
Corporation, each as in effect on the date hereof, have been delivered to the
Investors.
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3.2 CAPITALIZATION.
The authorized capital stock of the Corporation on the date hereof
consists of 40,000,000 shares of Common Stock, par value $.001 per share
("Common Stock") and 10,000,000 shares of Preferred Stock, par value $.001 per
share (the "Preferred Stock"). On the date hereof, 625,448 shares of Common
Stock will be outstanding. Of the authorized Preferred Stock, 4,070,339 shares
have been designated Series C Preferred Stock, 1,680,880 shares have been
designated Series B Preferred Stock and 50,000 have been designated Series M
Preferred Stock. On the date hereof, giving effect to the issuance of the
Securities hereunder, 4,070,339 shares of Series C Preferred Stock are
outstanding, 1,680,880 shares of Series B Preferred stock are outstanding and
50,000 shares of Series M Preferred Stock are outstanding. The Securities have
the rights, preferences and privileges set forth in the Certificate of
Incorporation. The Corporation has reserved 4,070,339 shares of Common Stock for
issuance upon conversion of the Series C Preferred Stock, 5,093,576 shares of
Common Stock for issuance upon conversion of the Series B Preferred Stock, and
270,027 shares of Common Stock for issuance upon conversion of the Series M
Preferred Stock and 1,590,000 shares of Common Stock for issuance to employees,
consultants and directors under its 1994 Omnibus Equity Incentive Plan (the
"Stock Plan"). On the date of the closing, options to acquire an aggregate of
1,582,100 shares of Genomic Solutions Inc. Common Stock are outstanding. The
Stock Plan was adopted by the Board of Directors and shareholders of the
Corporation in July 1994 and amended in April 1997. In addition, the Corporation
has committed to issue shares of Common Stock to shareholders of PBA Technology
Ltd. ("PBA") in the event the Corporation consummates the acquisition of PBA
(the "PBA Acquisition"). Additionally, the Corporation expects to grant options
to acquire Common Stock to executive officers and directors of the Company and
employees of PBA after consummation of the PBA Acquisition. Except as set forth
herein, there are no outstanding rights, options, warrants, preemptive rights,
conversion rights or agreements for the purchase, acquisition or receipt from
the Corporation of any shares of capital stock or any other securities of the
Corporation. The Corporation is not a party to any existing agreement with any
person or entity which requires the Corporation to purchase from such person or
entity any of its capital stock, any securities convertible into or exchangeable
or exercisable for any of its capital stock, or any right, options or warrants
for its capital stock. All outstanding securities of the Corporation, including
the Securities, have been issued in accordance with all applicable state and
Federal securities laws.
3.3 CORPORATE POWER: AUTHORIZATION.
The Corporation has all requisite legal and corporate power to enter
into this Agreement, to issue and sell the Securities as provided hereunder, and
to carry out and perform its obligations under the terms of this Agreement. All
corporate action on the part of the Corporation and its officers, directors and
shareholders that is necessary for the authorization, execution and delivery of
this Agreement by the Corporation, for the performance of the Corporation's
obligations hereunder and for the issuance and delivery of the Securities has
been taken; and this Agreement constitutes a legal and binding
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obligation of the Corporation, enforceable against the Corporation in accordance
with its terms subject to: (i) judicial principles respecting or limiting the
availability of specific performance, injunctive relief and other equitable
remedies; and (ii) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect generally relating to or affecting
creditors' rights. The Corporation is not in violation of any term of its
Certificate of Incorporation or By-laws, or in violation of any term of any
judgment, decree, order, statute, rule or government regulation applicable to
the Corporation or to which the Corporation is a party. The Corporation is not
in violation of any term of any agreement or instrument applicable to the
Corporation or to which the Corporation is a party where such violation is
likely to be materially adverse to the Corporation's financial condition,
business or operations.
3.4 VALIDITY OF SECURITIES.
The Securities, when issued, sold and delivered in accordance with the
terms of this Agreement, will be duly and validly issued, fully paid and
non-assessable and will be free and clear of any liens, encumbrances or
restrictions of any kind; provided, however, that the Securities may be subject
to restrictions on transfer under state and federal securities laws and the
Shareholders Agreement dated as of December 24, 1997 (the "Shareholders
Agreement"), among the Corporation and the Shareholders (as defined therein).
The Common Stock issuable upon conversion of the Securities has been duly and
validly reserved and, upon issuance in accordance with the terms of the
Certificate of Incorporation, will be duly and validly issued, fully paid and
non-assessable and will be free and clear of any liens, encumbrances or
restrictions of any kind; provided, however, that the Common Stock may be
subject to restrictions on transfer under state and federal securities laws.
3.5 CONSENTS AND WAIVERS.
The Corporation has obtained any and all consents, permits and waivers
and made all filings necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
3.6 LITIGATION.
There is no action, suit or proceeding pending or, to the knowledge of
the Corporation, threatened against the Corporation or related to the business
conducted by the Corporation. The Corporation is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by the Corporation currently pending or which the Corporation
intends to initiate.
3.7 SHAREHOLDER LISTS AND AGREEMENTS.
Set forth on Schedule 3.7 is a true and complete list of all
shareholders of the Corporation and persons holding options or warrants to
acquire shares of the Corporation,
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showing the number of shares of capital stock held, or acquirable upon exercise
of the option or warrant, by each such person in each case as of the date of
this Agreement.
3.8 SUBSIDIARIES.
Except as set forth on Schedule 3.8, the Corporation has no
subsidiaries and does not own, directly or indirectly, any interest in any
corporation, association or business entity.
3.9 FINANCIAL STATEMENTS.
(a) (c) Schedule 3.9 attached hereto contains true, correct
and complete copies of:
(i) the balance sheet of the Corporation, as of July 31,
1997, and the related statements of operations, shareholders' deficit
and cash flows of the Corporation for the period covered thereby,
including the footnotes thereto (all of foregoing being hereinafter
collectively called the "Annual Financial Statements"); and
(ii) the interim balance sheet of the Company (the
"Interim Balance Sheet") as of November 30, 1997 (the "Interim Balance
Sheet Date"), and the interim statements of operations and cash flows
of the Corporation for the four month period then ended, including any
footnotes thereto (all of the foregoing, including the Interim Balance
Sheet, being hereinafter collectively referred to as the "Interim
Financial Statements" and together with the Annual Financial Statements
collectively, the "Financial Statements").
(b) The Financial Statements taken as a whole (A) fairly
present in all material respects (subject, in the case of the Interim Financial
Statements, to normal, recurring year-end adjustments which are not material
individually or in the aggregate) the financial position of the Corporation as
of the dates indicated and the results of operations of the Corporation for the
periods indicated, (B) (x) have been prepared in accordance with Generally
Accepted Accounting Principles ("GAAP") consistently applied throughout the
periods covered thereby (subject, in the case of the Interim Financial
Statements, to normal, recurring year-end adjustments which are not material
individually or in the aggregate) or (y) to the extent not prepared in
accordance with GAAP, then footnotes to the Financial Statements will be
provided describing in reasonable detail the differences, if any, between the
generally accepted accounting principles pursuant to which such Financial
Statements were in fact prepared and GAAP and (C) are in accordance with the
books and records of the Corporation which have been maintained in a manner
consistent with historical practice. All reserves established and set forth in
the Interim Balance Sheet are reasonable and adequate.
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3.10 ABSENCE OF UNDISCLOSED LIABILITIES.
The Corporation has no liabilities or obligations of any nature,
whether matured or unmatured, known or unknown, or fixed or contingent, except
(a) to the extent expressly reflected or reserved against on the Interim Balance
Sheet or expressly disclosed in the notes thereto and (b) liabilities and
obligations arising since the Interim Balance Sheet Date in the ordinary course
of business consistent with past practice (other than any such liability or
obligation arising from breach of contract, breach of warranty, tort,
infringement, or violation of any Legal Requirement).
3.11 ABSENCE OF CERTAIN DEVELOPMENTS.
Except as reflected in the Financial Statements, in the Business Plan
or in Schedule 3.11, since the Interim Balance Sheet Date, there has been (i) no
material adverse change in the condition (financial or otherwise) of the
Corporation or in the assets, liabilities, or properties of the Corporation,
(ii) no declaration, setting aside or payment of any dividend or other
distribution with respect to, or any direct or indirect redemption or
acquisition of, any of the capital stock of the Corporation, (iii) no waiver of
any valuable right of the Corporation or cancellation of any debt or claim held
by the Corporation, (iv) no loan by the Corporation to any officer, director,
employee or shareholder of the Corporation, or any agreement or commitment
therefor, (v) no increase, direct or indirect, in the compensation paid or
payable to any officer, director, employee or agent of the Corporation, (vi) no
material loss, destruction or damage to any property of the Corporation, whether
or not insured, (vii) no labor disputes involving the Corporation and no
material change in the personnel of the Corporation or the terms and conditions
of their employment, and (viii) no acquisition or disposition of any assets (or
any contract or arrangement therefor), nor any other transaction by the
Corporation otherwise than for fair value in the ordinary course of business.
3.12 TITLE TO ASSETS.
The Corporation has good and marketable title to all of the assets,
reflected as being owned by the Corporation on the Interim Balance Sheet or
acquired subsequent thereto (except for inventory sold or otherwise disposed of
in the ordinary course of business for fair value and accounts and notes
receivable paid in full since the date of the Interim Balance Sheet), free and
clear of all Encumbrances, except for those Encumbrances set forth on Schedule
3.12 and Permitted Liens. Such assets are in good operating condition and repair
(normal wear and tear excepted), are adequate and suitable for the uses for
which they are used in the Corporation' business, are not subject to any
condition which interferes with the economic value or use thereof, and
constitute all assets necessary to permit the Corporation to carry on its
business after the consummation of the transactions contemplated by this
Agreement as generally conducted by the Corporation prior thereto. The term
"Permitted Liens" means (i) liens arising by operation of law in the ordinary
course of business that, individually and in the aggregate, do not in any
material respect interfere with the use of any of the assets subject thereto,
(ii) minor imperfections of title which do not materially detract from the value
of the
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property affected or materially impair the operations of either Corporation, and
(iii) liens for taxes not yet due and payable; and (iv) landlords liens, if any,
relating to leases.
3.13 REAL PROPERTY
The Corporation does not own directly or indirectly any real property.
3.14 TAX MATTERS.
The Corporation has filed all federal, state and local income, excise
or franchise tax returns, real estate and personal property tax returns, sales
and use tax returns and other tax returns required to be flied by it and has
paid all taxes owed by it, except taxes which have not yet accrued or otherwise
become due or for which adequate provision has been made in the pertinent
Financial Statements. The provision for taxes on the Interim Balance Sheet is
sufficient as of its date for the payment of all accrued and unpaid federal,
state, county and local taxes of any nature of the Corporation whether or not
assessed or disputed. All taxes and other assessments and levies which the
Corporation is required to withhold or collect have been withheld and collected
and have been paid over when due to the proper governmental authorities. With
regard to the income tax returns of the Corporation, the Corporation has not
received notice of any audit or of any proposed deficiencies from any taxing
authority and no controversy with respect to taxes of any type is pending or, to
the knowledge of the Corporation, threatened. There are in effect no waivers of
applicable statutes of limitations with respect to any taxes owed by the
Corporation for any year. The Corporation does not conduct any foreign or
international operations that would ordinarily subject it to taxation in any
jurisdiction outside of the United States.
3.15 CONTRACTS AND COMMITMENTS.
Except as set forth in Schedule 3.15, the Corporation (i) is not a
party to any contract, obligation or commitment which involves a potential
commitment in excess of $ 100,000 or which is otherwise material and not entered
into in the ordinary course of business, and (ii) does not have any employment
contracts; stock redemption or purchase agreements; financing agreements;
licenses; distributor or sales representative agreements; agreements with
officers, directors, employees or shareholders of the Corporation or persons or
organizations related to or affiliated with any such persons; leases; agreements
relating to product development; or pension, profit-sharing, retirement or stock
option plans. Each agreement or understanding set forth on Schedule 3.15 is in
full force and effect and constitutes a valid and binding obligation of the
Corporation and to the best knowledge of the Corporation, the other party
thereto. The Corporation has in all material respects performed the obligations
required to be performed by them except for obligations not yet due to be
performed and are not in default or have received notices that they are in
default in any material respect under any such agreement or understanding. There
exists no known event or condition which, after notice or lapse of time, or
both, would constitute such a default. There are no material defaults by any
other party to any such agreement or understanding as to which any notice of
default has been
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given. The Corporation has made available to the Investors correct and complete
copies of all documents set forth on such Schedule.
3.16 PROPRIETARY RIGHTS; EMPLOYEE RESTRICTION.
The Corporation has disclosed on Schedule 3.16, all copyright
registrations, trademark registrations and applications for registration,
patents and patent applications, trademarks, trade secrets or other proprietary
rights (collectively, "Intellectual Property Rights") used or, to the best of
the Corporation's knowledge, to be used in the Corporation's business as
presently conducted or contemplated and all licenses, assignments and leases
relating to Intellectual Property Rights of others embodied in products of the
Corporation. The Corporation has exclusive ownership of or license to use, all
Intellectual Property Rights identified in Schedule 3.16 and, to the best
knowledge of the Corporation, it has obtained any licenses, releases or
assignments to use all third parties' Intellectual Property Rights embodied in
products of the Corporation. To best knowledge of the Corporation, neither the
present nor contemplated business activities or products of the Corporation
infringe any Intellectual Property Rights of others. The Corporation has not
received any notice or other claim from any person asserting that any of the
Corporation's present or contemplated activities infringe or may infringe any
Intellectual Property Rights of such person. The Corporation has the right to
use, free and clear of claims or rights of others, all trade secrets, customer
lists, manufacturing processes, hardware designs, programming processes,
software and other information required for or incident to its products or its
business as presently conducted or contemplated. The Corporation has taken all
commercially reasonable steps to establish and preserve its ownership of all
copyright, trade secret and other proprietary rights with respect to its
products and technology, except such rights as the Corporation has reasonably
determined are not material to the Corporation's continuing business operations.
The Corporation is not aware of any infringement by others of its copyrights or
other Intellectual Property Rights to which it has exclusive use in any of its
products, technology or services, or any violation of the confidentiality of any
of its proprietary information. The Corporation is not making unlawful use of
any confidential information or trade secrets of any past or present employees
of the Corporation. Except as set forth in Schedule 3.16, neither the
Corporation nor, to the Corporation's knowledge, any of the key employees of the
Corporation have any agreements or arrangements with former employers of such
employees relating to confidential information or trade secrets of such
employers. The activities of the Corporation's employees on behalf of the
Corporation do not violate any agreements or arrangements known to the
Corporation which any such employees have with former employers.
3.17 EFFECT OF TRANSACTIONS.
The execution, delivery and performance by the Corporation of this
Agreement and the documents executed and delivered in connection therewith will
not conflict with or result in any default under any material contract,
obligation or commitment of the Corporation, or any charter provision, by-law or
corporate restriction of the Corporation or the creation of any lien, charge or
encumbrance of any nature upon any of the
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properties or assets of the Corporation, except pursuant to this Agreement. The
Corporation's execution and delivery of this Agreement and the documents
executed and delivered in connection therewith and its performance of the
transactions contemplated thereby will not violate any instrument, agreement,
judgment, decree, order, statute, rule or regulation of any federal, state or
local government or agency applicable to the Corporation.
3.18 INSURANCE.
The Corporation maintains valid and effective insurance policies,
issued by financially sound and reputable insurers, to insure it against all
risks usually insured against by persons or entities conducting businesses
similar to that of the Corporation in the locality in which such businesses are
conducted. The Corporation has paid all due premiums with respect to all
policies of insurance currently maintained by the Corporation.
3.19 SECURITIES ACT REGISTRATION.
Assuming that the representations and warranties of the Investor
contained herein are true, the offer, sale and delivery of the Securities in the
manner contemplated by this Agreement are each exempt from registration under
the Securities Act and are exempt or will be exempt under applicable state
securities or Blue Sky laws regulating the issuance or sale of securities upon
the timely filing of notices with the appropriate states.
3.20 BUSINESS; COMPLIANCE WITH LAWS.
The Corporation (i) is in compliance with, in all respects all Legal
Requirements applicable to it and its business and (ii) has all material
federal, state, local and foreign governmental licenses and permits
(collectively, "Permits") used or necessary in the conduct of its business. Such
Permits are in full force and effect, no violations with respect to any thereof
are recorded, no legal proceeding is pending or, to the best knowledge of the
Corporation, threatened to revoke or limit any thereof.
3.21 BOOKS AND RECORDS.
The minute books of the Corporation contain complete and accurate
records of all meetings and other corporate actions of its shareholders and its
board of directors (the "Board of Directors") and committees thereof. The stock
ledger of the Corporation is complete and reflects all issuances, transfers,
repurchases and cancellations of shares of capital stock of the Corporation.
3.22 EMPLOYEE BENEFIT PLANS.
Each employee benefit plan, program, arrangement, practice or contract,
whether formal or informal, maintained or contributed to by the Corporation
providing current or retirement benefits or compensation to or on behalf of
employees or former employees of
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such Persons (the "Benefits Plans"), are in compliance in all material respects
with the presently applicable laws.
3.23 SMALL BUSINESS MATTERS.
The Corporation is a "small business concern" within the meaning of the
Small Business Investment Act of 1958 and the regulations thereunder (the "SBIC
Act"), including Title 13, Code of Federal Regulations, ss. 121.301. The
information set forth in the Small Business Administration Forms 480, 652 and
Sections A and B of Form 1031, which have been delivered on or prior to the
date hereof to the Investor regarding the Corporation is accurate and complete.
The Corporation does not presently engage in, and it shall not hereafter engage
in, any activities, nor shall the Corporation use directly or indirectly the
proceeds from the sale of the Securities for any purpose for which a Small
Business Investment Corporation is prohibited from providing funds by the SBIC
Act, including Title 13, Code of Federal Regulations, ss. 107.720. The
Corporation acknowledges that it has been declared by the Investor that the
Investor is a federal licensee under the SBIC Act.
3.24 INFORMATION SUPPLIED TO THE INVESTOR.
(a) (e) Neither this Agreement, or the Schedules and Exhibits
attached hereto, nor any written document (including the Business Plan),
certificate, projection or statement furnished to the Investor by or on behalf
of the Corporation pursuant to this Agreement contains any untrue statement of a
material fact, and none of this Agreement, the Schedules and Exhibits attached
hereto or such other written documents, projections, certificates and statements
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading. There is no material fact relating
to the business, prospects, operations, affairs or conditions of the Corporation
which adversely affects or in the future may, in the reasonable business
judgment of the Corporation, adversely affect the same which has not been set
forth in this Agreement or in the Schedules or Exhibits attached hereto or other
materials delivered pursuant to this Agreement.
(b) The projections contained in the Business Plan are based
upon assumptions believed by the Corporation to be reasonable as of the date
hereof, however the Corporation gives no assurance that the actual operations of
the Company will conform to such projections.
(c) Any disclosure contained in any of the Schedules delivered
hereunder, which on its face is clearly and unequivocally applicable to another
Schedule to this Agreement, shall be deemed made with respect to such other
Schedule.
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3.25 BROKERAGE.
No person or entity acting on behalf or under the authority of the
Corporation is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the sale of the Securities.
3.26 EMPLOYEES.
The Corporation has no collective bargaining agreement with any of its
employees. There is no labor union organizing activity pending nor, to the best
knowledge of the Corporation, threatened with respect to the Corporation. The
Corporation is not aware that any officer or key employee intends to terminate
his or her relationship with the Corporation, nor does the Corporation have any
present intention of terminating the employment of any officer or key employee.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
4.1 REPRESENTATIONS AND WARRANTIES
Each Investor hereby represents and warrants to the Corporation,
severally and not jointly, and only as to itself, as follows:
(a) All action on the part of such Investor necessary for the
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby has been taken and, assuming due execution
and delivery by the Corporation, this Agreement constitutes a legal, valid,
binding and enforceable obligation of such Investor, subject to: (i) judicial
principles respecting or limiting the availability of specific performance,
injunctive relief and other equitable remedies; and (ii) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
generally relating to or affecting creditors' rights.
(b) If the Investor is an entity, trust, pension fund or XXX
account (and "Entity"), the Entity represents and warrants that: (i) such Entity
is an existing entity, and has not been organized or reorganized for the purpose
of making this investment (or if not true, such fact shall be disclosed to the
Corporation in writing along with information concerning the beneficial owners
of the Entity), (ii) the undersigned has the authority to execute this Agreement
and the Confidential Statement of Investor Suitability attached as Exhibit B
hereto and any other documents in connection with an investment in the
Securities on the Entity's behalf, and (iii) the Entity has the power, right and
authority to invest in the Securities and enter into the transactions
contemplated hereby, and the investment is suitable and appropriate for the
Entity and its beneficiaries (given the risks and illiquid nature of the
investment).
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4.2 INVESTMENT.
(a) Such Investor has been advised that the Securities have not
been registered under the Securities Act of 1933, as amended (the "Act"), or
registered or qualified under any applicable state securities laws on the ground
that no distribution or public offering of the Securities is to be effected, and
that in this connection the Corporation is relying in part on the
representations of such Investor set forth in this Article IV;
(b) Such Investor has been further advised that no public market
now exists for any of the securities issued by the Corporation and that a public
market may never exist for the Securities;
(c) Such Investor is purchasing the Securities for its own
account and not for any other person;
(d) By reason of its business or financial experience, such
Investor has the capacity to protect its own interest in connection with the
transactions contemplated hereunder, is able to bear the risks of an investment
in the Corporation, and can afford a complete loss of such investment;
(e) Such Investor is aware of the Corporation's business affairs
and financial condition an has acquired sufficient information about the
Corporation to reach an informed and knowledgeable decision to acquire the
Securities; and
(f) Such Investor has had the opportunity to ask questions
regarding the Corporation and the Corporation has provided information in
response to the questions.
4.3 FEDERAL SECURITIES LAWS.
In order to enable the Corporation to determine whether the sale of the
Securities is exempt from registration under the Act, such Investor represents
that it is an Accredited Investor (as defined in Schedule 4.3 hereof), has
completed truthfully the appropriate items in the Confidential Statement of
Investor Suitability attached as Exhibit B hereto, and is acquiring the
Securities for its own account, for investment, and not with a view to, or for
sale in connection with, any distribution thereof.
4.4 STATE SECURITIES LAWS.
The address of such Investor set forth on Schedule I attached hereto is
the Investor's true and correct residence or place of business.
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ARTICLE V
PRIOR OR SIMULTANEOUS ACTIONS
Before or at the closing of the issuance of the Securities hereunder,
the following actions have been or are being taken:
(a) Certificate of Incorporation. The Certificate of
Incorporation is being filed with and accepted by the Secretary of State of the
State of Delaware.
(b) Shareholders Agreement. Each Investor that is not currently
a party to the Shareholders Agreement is executing and delivering a Joinder
Agreement in a form acceptable to the Corporation pursuant to which such
Investor shall agree to be bound by the terms of the Shareholders Agreement.
(c) Merger. The merger of B.I. Systems Corporation with and into
the Corporation shall have become effective.
(d) Authorizing Actions of the Corporation. The Investors are
receiving certified copies of all requisite corporate actions taken by the
Corporation to authorize its adoption of the Certificate of Incorporation, its
execution and delivery of the Documents, its performance of its obligations
thereunder, and its consummation of the transactions contemplated thereby.
ARTICLE VI
COVENANTS OF THE CORPORATION
6.1 OPERATING PLAN; OTHER REPORTING.
The Corporation shall prepare and deliver to each Investor holding,
together with its affiliate, Securities with an aggregate purchase price
exceeding $ 1,000,000 (each a "Qualified Investor") within 30 days after the
start of each fiscal year, an operating plan prepared on an annual basis and,
promptly after preparation, any material revisions to such operating plan;
provided, however that with respect to fiscal year 1998, the operating plan
shall be delivered to the Qualified Investor when such plan has been made
available to the Board of Directors. In addition, the Corporation shall promptly
provide to Qualified Investors other customary information and materials,
including, without limitation, reports of material adverse developments,
management letters, communications with shareholders or directors, press
releases and registration statements.
6.2 AFFILIATED TRANSACTION.
All transactions by and between the Corporation and any officer,
employee or shareholder of the Corporation or Persons controlled by or
affiliated with such officer, employee or shareholder, shall be conducted on an
arms-length basis, shall be on terms and conditions no less favorable to the
Corporation than could be obtained from unrelated
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Persons and shall be approved by the Board after full disclosure of the terms
thereof, for which purpose the interested party, if a director, and any
affiliate of the interested party who is a director, shall not be entitled to
vote.
6.3 INSPECTION.
The Corporation shall, upon reasonable prior notice, permit authorized
representatives of each Qualified Investor to visit and inspect any of the
properties of the Corporation including its books of account (and to make copies
thereof and take extracts therefrom), and to discuss the affairs, finances and
accounts of the Corporation with its officers, administrative employees and
independent auditors, all at the expense of the Investors and at such reasonable
times and as often as may be reasonably requested.
6.4 MATERIAL CHANGES AND LITIGATION.
The Corporation shall promptly (and, in any event, not later than the
date of release of such information to the public generally) notify the
Investors or its transferees of any material adverse change in the business,
properties, assets, or condition (financial or otherwise) of the Corporation and
of any litigation or governmental proceeding or investigation pending (or, to
the best knowledge of the Corporation, threatened) against the Corporation or
against any officer, director, key employee, or principal shareholder of the
Corporation, that materially adversely affects (or if adversely determined,
could materially adversely affect) its present or proposed business, properties,
assets, or condition (financial or otherwise) taken as a whole.
6.5 EMPLOYEE SHARES.
The officers and employees of the Corporation to whom, and the times at
which, stock options shall be granted by the Corporation, the type of options to
be granted, the duration of each option, the price and method of payment for
each option, and the vesting schedule of each option shall be determined by the
compensation committee of the Board.
6.6 INTEGRATION
The Corporation shall not offer, sell or solicit offers to buy or
otherwise negotiate with respect to any security (as defined in the Securities
Act) that will be integrated with the sale of the Common Stock in a manner that
would require the registration of any of the Common Stock under the Securities
Act, except in connection with an initial public offering by the Corporation
under the Securities Act.
6.7 USE OF PROCEEDS.
The Corporation shall use the proceeds from the sale of the Securities
solely for working capital and other general corporate purposes consistent with
the strategic business plan of the Corporation (the "Business Plan"); provided,
however, that the proceeds of the purchase of Securities by Chase Venture
Capital Associates, L.P., shall
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not be used by the Corporation to finance the costs incurred in connection with
the PBA Acquisition.
6.8 NEGATIVE COVENANTS.
Without the prior consent of the holders of no less than 66 2/3% of the
then outstanding Securities, the Corporation shall not:
(a) amend the Corporation's Certificate of Incorporation or
By-laws in a manner which adversely affects the rights of the holders of the
Securities;
(b) pay dividends on or make other distributions with respect to
any capital stock of the Corporation;
(c) engage in any business other than the business engaged in by
the Corporation as of the date hereof or as contemplated by the Business Plan;
or
(d) increase the number of directors constituting the Board of
Directors of the Corporation to more than nine members.
6.9 SHAREHOLDERS AGREEMENT.
(a) The Corporation hereby agrees to use its best efforts to
cause the shareholders of the Corporation that are currently party to the
Shareholders Agreement to execute and deliver an amendment to the Shareholders
Agreement, pursuant to which the Shareholders Agreement will be amended to
include drag-along rights.
(b) The Corporation hereby agrees to use its best efforts to
cause any employee of the Corporation or a subsidiary thereof that is a
shareholder of the Corporation that is not currently a party to the Shareholders
Agreement to execute and deliver a joinder agreement pursuant to which such
employee agrees to be bound by the terms of the Shareholders Agreement.
(c) The Corporation hereby agrees that any future issuance of
shares of capital stock, or options to acquire shares of capital stock, of the
Corporation, to any employee of the Corporation or any subsidiary thereof shall
be conditioned upon such employee executing and delivering a joinder agreement
pursuant to which such employee agrees to be bound by the terms of the
Shareholders Agreement, as amended from time to time.
6.10 TERMINATION.
The covenants set forth in Article VI hereof shall terminate upon the
consummation of a public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of the Corporation's Common Stock where the aggregate offering price to the
public is no less than
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$20,000,000.00, and the public offering price is not less than $5.00 per share
(adjusted to reflect any stock splits, combinations or similar events after the
date hereof).
ARTICLE VII
REGULATORY MATTERS
7.1 REGULATORY COMPLIANCE COOPERATION.
(a) If a Regulated Holder determines that it has a Regulatory
Problem, the Corporation agrees to take all such actions as are reasonably
requested by such Regulated Holder (x) to effectuate and facilitate any transfer
by such Regulated Holder of any securities of the Corporation then held by such
Regulated Holder to any person designated by such Regulated Holder, (y) to
permit such Regulated Holder (or any Affiliate of such Regulated Holder) to
exchange all or any portion of the voting securities of the Corporation then
held by such person on a share-for-share basis for shares of a class of
nonvoting securities of the Corporation, which nonvoting securities of the
Corporation shall be identical in all respect to such voting securities, except
that such new securities shall be nonvoting and shall be convertible into voting
securities on such terms as are requested by such Regulated Holder in light of
regulatory considerations then prevailing, and (z) to continue and preserve the
respective allocation of the voting interests with respect to the Corporation
provided for in the Certificate of Incorporation of the Corporation and this
Agreement and with respect to such Regulated Holder's ownership of the
Corporation's voting securities. Such actions may include, without limitation,
(x) entering into such additional agreements as are reasonably requested by such
Regulated Holder to permit any person(s) designated by such Regulated Holder to
exercise any voting power which is relinquished by such Regulated Holder upon
any exchange of voting securities for nonvoting securities of the Corporation;
and (y) entering into such additional agreements, adopting such amendments to
this Agreement, the Certificate of Incorporation and the By-laws of the
Corporation and taking such additional actions as are reasonably requested by
such Regulated Holder in order to effectuate the intent of the foregoing. As
used herein, "Regulated Holder" means any Investor that is (i) a "small business
investment corporation" licensed by the United States Small Business
Administration under the Small Business Investment Act of 1958, as amended, (ii)
a Regulation Y Holder (as defined below), and/or (iii) subject to any similar,
related or successor laws and regulations regulating banks, bank holding
companies, small business investment companies and their respective
subsidiaries.
(b) If a Regulated Holder elects to transfer securities of the
Corporation to an Affiliate who is, or upon such transfer would become, a
Regulation Y Holder (as defined below) in order to avoid or cure a Regulatory
Problem, the Corporation shall enter into such agreements with such Regulated
Holder and its Affiliates as it may reasonably request in order to assist such
Regulated Holder and its Affiliates in complying with all applicable laws. Such
agreements may include restrictions on the conversion, redemption, repurchase or
retirement of securities of the Corporation that would result or be reasonably
expected to result in such Regulated
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Holder or its Affiliates holding more voting securities or total equity than it
is permitted to hold under such applicable laws. As used herein, "Regulation Y
Holder" means any Investor that is (or that is a subsidiary of a bank holding
corporation that is) subject to the various provisions of Regulation Y of the
Board of Governors of the Federal Reserve Systems, 12 C.F.R., Part 225 (or any
successor to Regulation Y), so long as such Regulation Y Holder shall hold such
securities.
(c) If a Regulated Holder has the right or opportunity to
acquire any of the Corporation's securities from the Corporation, any other
Regulated Holder or any other person or entity (as the result of a preemptive
offer, pro rata offer or otherwise), at such Regulated Holder's request the
Corporation shall offer to sell (or if the Corporation is not the seller, to
cooperate with the seller and such Regulated Holder to permit such seller to
sell) such non-voting securities on the same terms as would have existed had
such Regulated Holder acquired the securities so offered and immediately
requested their exchange for non-voting securities pursuant to Section 7. 1 (a)
above.
(d) (ad) Before the Corporation redeems, purchases or otherwise
acquires, directly or indirectly, or converts or takes any action with respect
to the voting rights of, any securities, the Corporation shall give written
notice of such pending action to each Regulated Holder. Upon the written request
of any Regulated Holder made within 10 days after its receipt of such notice
stating that after giving effect to such action such Regulated Holder would have
a Voting Regulatory Problem, the Corporation shall defer taking such action for
such period (not to extend beyond 45 days after such Regulated Holder's receipt
of the Corporation's original notice) as such Regulated Holder requests to
permit it and its Affiliates to reduce the quantity of the Corporation's
securities they own or take other appropriate action in order to avoid the
Voting Regulatory Problem. In addition, the Corporation shall not be a party to
any merger, consolidation, recapitalization or other transaction pursuant to
which any Regulated Holder would be required to take any voting securities, or
any securities convertible into, or exchangeable or exercisable for, voting
securities, which might reasonably be expected to cause such Regulated Holder to
have a Voting Regulatory Problem. In no event shall the Corporation be required
to cause securities to be registered under the Securities Act or the Securities
Exchange Act of 1934, as amended, pursuant to this Section 7. 1.
7.2 COVENANT NOT TO AMEND.
The Corporation agrees not to amend or waive the voting or other
provisions of this Agreement or the Certificate of Incorporation or By-laws of
the Corporation if such amendment or waiver would cause any Investor to have a
Regulatory Problem, provided that any such Investor notifies the Corporation
that it would have a Regulatory Problem promptly after it has notice of such
amendment or waiver.
7.3 CERTAIN INFORMATION RIGHTS AND RELATED COVENANTS.
(a) Upon the request of any Regulated Holder, the Corporation
shall promptly:
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(i) provide to such person and the U.S. Small Business
Administration (the "SBA") access to its books and records for the purpose of
confirming the use of the proceeds of such person's financing and for all other
purposes required by the SBA;
(ii) provide to such person and the SBA a certificate of its
chief financial officer (1) verifying the use of such proceeds and (2)
certifying compliance by the Corporation with the provisions of this Agreement
(provided that such certificate may be truthfully given);
(iii) provide to such person an assessment, in form and
substance satisfactory to such person, of the economic impact of such person's
financing, specifying the full-time equivalent jobs created or retained, the
impact of the financing on the Corporation's business in terms of expanded
revenue and taxes and other appropriate economic benefits, including, but not
limited to, technology development or commercialization, minority business
development, urban or rural business development, expansion of exports and
assistance to manufacturing firms;
(iv) provide to such person such financial statements and other
information as such Person may from time to time reasonably request for the
purpose of assessing the Corporation's financial condition; and
(v) furnish to such person all information requested by it in
order for it to prepare and file SBA Form 468 or to prepare an assessment of the
economic impact of such Person's financing, and any other information requested
or required by any governmental agency asserting jurisdiction over such Person.
(b) For a period of one year following the date hereof, neither the
Corporation nor any of its subsidiaries shall change its business activity if
such change would render the Corporation ineligible as a "Small Concern" under
the Small Business Investment Act and the regulations thereunder.
(c) The Corporation shall at all times comply with the
nondiscrimination requirements of 13 C.F.R., Parts 112, 113 and 117.
7.4 CERTAIN DEFINITIONS
"Affiliate" means any other person or entity that directly or
indirectly through one or more intermediaries controls, is controlled by or is
under common control with such person or entity.
"securities" means, with respect to any person, such Person's
"securities" as defined in Section 2(l) of the Securities Act of 1933, as
amended, and includes such person's capital stock or other equity interests or
any options, warrants or other securities or rights that are directly or
indirectly convertible into, or exercisable or exchangeable for, such person's
capital stock or other equity interests.
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"Regulatory Problem" means, with respect to any Investor, (i) any set
of facts or circumstance wherein it has been asserted by any governmental
regulatory agency (or a Investor believes that there is a substantial risk of
such assertion) that such Investor is not entitled to hold, or exercise any
significant right with respect to, the capital stock of the Corporation which it
holds or (ii) a Voting Regulatory Problem.
"Voting Regulatory Problem" shall exist when a person and such person's
affiliates would own, control or have the power (including voting rights) over a
greater quantity of securities of any kind issued by the Corporation or any
other person than are permitted under any applicable law.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties, covenants, promises and agreements
contained in this Agreement shall survive the Closings and shall remain in full
force and effect until the second anniversary of the date of this Agreement.
8.2 INDEMNIFICATION.
In addition to all other rights and remedies available to the
Investors, the Corporation shall indemnify, defend and hold harmless the
Investors and its affiliates and their respective partners, officers, directors,
employees, agents and representatives against any loss, liability, demand,
claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or
expense (including legal and accounting fees and expenses related thereto or
incurred in enforcing this Article VIII, but excluding punitive damages) arising
from the untruth, inaccuracy or breach of any of the representations,
warranties, covenants or agreements of the Corporation contained in any Document
or any facts or circumstances constituting any such untruth, inaccuracy or
breach.
ARTICLE IX
RESTRICTIONS ON TRANSFER
9.1 NONTRANSFERABLE SECURITIES.
The Securities shall not be transferable except in accordance with the
conditions set forth in the Shareholders Agreement.
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9.2 RESTRICTIVE LEGEND.
(a) Each certificate representing Securities issued hereunder
shall (unless otherwise permitted by the provisions of paragraph (b) and (c)
below) be stamped or otherwise imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH
ACT."
(b) The holder of any Securities by acceptance thereof agrees,
prior to any transfer of any Securities, to give written notice to the
Corporation of such holder's intention to effect such transfer and to comply in
all other respects with the provisions of this Section. Each such notice shall
describe the manner and circumstances of the proposed transfer. Upon request by
the Corporation, the holder delivering such notice shall deliver a written
opinion, addressed to the Corporation, of counsel for the holder of such
Securities, stating that in the opinion of such counsel (which opinion and
counsel shall be reasonable satisfactory to the Corporation) such proposed
transfer does not involve a transaction requiring registration or qualification
of such Securities under the Securities Act or the securities or "blue sky" laws
of any state of the United States. Such holder of Securities shall be entitled
to transfer such Securities in accordance with the terms of the notice delivered
to the Corporation, if the Corporation does not reasonably object to such
transfer on the basis that such proposed transfer involves a transaction
requiring registration or qualification of such securities under the Securities
Act or the securities or "blue sky" laws of any state of the United States and
requests an opinion with respect to such issue within five days after delivery
of such notice, or, if it requests such opinion, does not reasonably object to
such transfer within five days after delivery of such opinion. Each certificate
or other instrument evidencing the securities issued upon the transfer of any
Securities (and each certificate or other instrument evidencing any
untransferred balance of such Securities) shall bear the legend set forth in
paragraph (a) above unless (i) in such opinion of counsel registration of any
future transfer is not required by the applicable provisions of the Securities
Act or (ii) the Corporation shall have waived the requirement of such legends.
(c) Notwithstanding the foregoing provisions of this Section,
the restrictions imposed by this Section upon the transferability of any
Securities shall cease and terminate when (i) any such Securities are sold or
otherwise disposed of (A) pursuant to an effective registration statement under
the Securities Act or (B) in a transaction contemplated by paragraph (b) above
which does not require that the Securities so transferred bear the legend set
forth in paragraph (a) hereof, or (ii) the holder of such Securities has met
the requirements for transfer of such Securities under Rule 144(k) or any
successor statute. Whenever the restrictions imposed by this Section
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shall terminate, the holder of any Securities as to which such restrictions have
terminated shall be entitled to receive from the Corporation, without expense, a
new certificate not bearing the restrictive legend set forth in paragraph (a)
above and not containing any other reference to the restrictions imposed by this
Section.
ARTICLE X
MISCELLANEOUS
10.1 EXPENSES
The Corporation shall pay the legal fees of X'Xxxxxxxx, Graev &
Karabell, LLP, counsel to the Investors and all other reasonable out-of-pocket
expenses incurred by the Investors in connection with this transaction, its due
diligence investigation of the Corporation, the negotiation and preparation of
the Documents and the closing of the transactions contemplated by the Documents;
provided however; that the amount of such payment or reimbursement by the
Company shall not exceed $100,000. In addition, the Corporation shall reimburse
the Investors for all reasonable costs and expenses (including reasonable
attorney's fees) incurred in connection with any modifications or amendments to
or any waiver or consent under any of the Documents.
10.2 ENTIRE AGREEMENT.
This Agreement and the other writings and agreements referred to herein
or delivered pursuant hereto contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
10.3 NOTICES ETC.
All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed effectively given upon personal delivery
or upon the seventh day following mailing by registered air mail, postage
prepaid, addressed (a) if to the Investor, as indicated on Schedule I attached
hereto, or at such other address as it shall have furnished to the Corporation,
(b) if to the Corporation, to Genomic Solutions Inc., 000 Xxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxx, 00000, and addressed to the attention of the corporate secretary, or
at such other address as the Corporation shall have furnished to the Investors,
or (c) if to any other holder of the Securities or of Common Stock issued upon
conversion of the Securities at such address as such holder shall have furnished
to the Corporation in writing, or, until such holder so furnishes an address to
the Corporation, then to and at the address of the last holder of such
Securities or shares of Common Stock issued upon conversion of the Securities,
who so furnished an address to the Corporation. In addition, any notice
delivered to an address outside the United States shall be duplicated by
counterpart telex, internet e-mail or facsimile notice (if available).
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10.4 DELAYS OR OMISSIONS.
No delay or omission to exercise any right, power or remedy accruing to
any holder of any securities issued or sold or to be issued or sold hereunder,
upon any breach or default of the Corporation under this Agreement shall impair
any such right, power or remedy of such holder nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or in any
similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
10.5 ASSIGNMENTS; SUCCESSORS AND ASSIGNS.
Except in connection with any transfer of Securities in accordance with
this Agreement, the rights of each party under this Agreement may not be
assigned. The provisions of this Agreement shall bind and inure to the benefit
of the respective successors, assigns, heirs, executors, and administrators of
the parties hereto.
10.6 AMENDMENTS.
The terms and provisions of this Agreement may not be modified or
amended, except pursuant to an instrument signed by the Corporation and the
Investors holding 66 2/3% of the Securities.
10.7 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
10.8 HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.9 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware (without giving effect to principles of
conflicts of laws).
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed themselves or by their respective representatives thereunto duly
authorized as of the date first above written.
GENOMIC SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
THE INVESTORS SIGNATURES ARE
ON THE ATTACHED INVESTOR SIGNATURE PAGES
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SCHEDULE I
INVESTORS
---------
SHARES OF SERIES DOLLAR VALUE
C C
NAME AND ADDRESS PREFERRED STOCK PREFERRED STOCK
Chase Capital Partners 3,015,375 $5,276,906
000 Xxxxxxx Xxxxxx, 00xx Floor 356,053 623,094
Xxx Xxxx, Xxx Xxxx 00000 3,371,428 5,900,000
American Healthcare Fund II 342,857 600,000
Capital Health Venture Partners
0000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
J. Xxxxxxx Xxxxxxxxx 142,857 250,000
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ian R. N. Bund 104,924 183,617
0000 Xxxxxxxx Xx., Xxxxx X
Xxx Xxxxx, XX 00000
Grove Investment Partners 50,378 88,162
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx 17,143 30,000
Xxx Xxxx - Xxxxx Xxxx
Xxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx 15,467 27,067
000 Xxxxxxxxxx, x0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 15,285 26,750
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxxx 10,000 17,500
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Total 4,070,339 $7,123,096
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