STOCK PURCHASE AGREEMENT
Exhibit
10.74
This
STOCK PURCHASE AGREEMENT (this Agreement) is dated as of the 16th day of June,
2009, by and between STAAR Surgical Company, a Delaware corporation with its
principal office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the
“Company”), and each of the investors named on a signature page hereto (each an
“Investor” and, collectively, the “Investors”).
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the
“Commission”) a Registration Statement (as defined below) relating to the offer
and sale from time to time of the Company’s securities, including shares of its
Common Stock, $0.01 par value per share (the “Common Stock”);
WHEREAS,
the Company is offering for sale shares of Common Stock (the “Offered Shares”)
to the Investors pursuant to the Registration Statement; and
WHEREAS,
each Investor, severally and not jointly, desires to purchase Offered Shares
from the Company on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the recitals (which are deemed to be a part of
this Agreement), mutual covenants, representations, warranties and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used herein,
the following terms have the meanings indicated:
“Person” shall mean any
individual, partnership, limited liability company, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality
thereof.
“Prospectus” shall mean the
prospectus forming a part of the Registration Statement and the prospectus
supplement relating to the Offered Shares in the form filed or to be filed
pursuant to Rule 424(b) under the Securities Act, as amended (the “Securities
Act”), as further amended or supplemented prior to the execution of this
Agreement, and shall include all information and documents incorporated by
reference in such prospectus.
“Registration Statement” shall
mean the registration statement on Form S-3 (File No. 333-159293), including a
prospectus, relating to the offer and sale of certain of the Company’s
securities, which was declared effective by the Commission on June 12,
2009. References herein to the term “Registration Statement” as of
any date shall mean such effective registration statement, as amended or
supplemented to such date, including all information and documents incorporated
by reference therein.
2. Purchase of Common
Stock. Subject and pursuant to the terms and conditions set
forth in this Agreement, the Company agrees that it will issue and sell to the
Investor and the Investor agrees that it will purchase from the Company, the
number of Offered Shares set forth below Investor’s name on the Investor
Signature Page hereto (the “Investor Shares”), at a purchase price of $1.88 per
share. The aggregate purchase price for the Investor Shares (the
“Aggregate Purchase Price”) is set forth on the Investor Signature Page
hereto. The closing of the purchase and sale of the Investor Shares
will be at 9:00 a.m., Eastern Daylight Time, on Friday, June 19, 2009, or at
such other date or time as the parties agree in writing (the
“Closing”).
3. Deliveries
at Closing.
(a) Deliveries by the
Investor. At the Closing, each Investor shall deliver to the
Company the Aggregate Purchase Price by wire transfer of immediately available
funds to an account designated by the Company as set forth on Schedule I hereto, which funds
will be delivered to the Company in consideration of the Investor Shares issued
at the Closing.
(b) Deliveries by the
Company. At the Closing, the Company shall deliver to each
Investor the Investor Shares through The Depository Trust Company’s
Deposit/Withdrawal at Custodian (“DWAC”) system to the account that the Investor
has specified on the Investor Signature Page hereto.
4. Representations, Warranties,
Covenants and Agreements.
(a) Investor Representations,
Warranties and
Covenants. Each Investor, severally and not jointly,
represents, warrants and agrees as follows:
(i) Investor
has received copies of the Registration Statement and the Prospectus, including
all documents and information incorporated by reference therein and amendments
thereto, and understands that no Person has been authorized to give any
information or to make any representations that were not contained in the
Registration Statement and the Prospectus, and Investor has not relied on any
such other information or representations in making a decision to purchase the
Investor Shares. Investor hereby consents to receiving delivery of
the Registration Statement and the Prospectus, including all documents and
information incorporated by reference therein and any amendments thereto, by the
Company’s filing on the XXXXX database of the Commission.
(ii) Investor
acknowledges that it has sole responsibility for its own due diligence
investigation and its own investment decision, and that in connection with its
investigation of the accuracy of the information contained or incorporated by
reference in the Registration Statement and the Prospectus and its investment
decision, Investor has not relied on any representation or information not set
forth in this Agreement, the Registration Statement or the
Prospectus. Investor understands that an investment in the Company
involves a high degree of risk for the reasons, among others, set forth under
the captions “Risk Factors” in the Prospectus.
(iii) The
execution and delivery of this Agreement by Investor and the performance of this
Agreement and the consummation by Investor of the transactions contemplated
hereby have been duly authorized by all necessary (corporate, partnership or
limited liability in the case of a corporation, partnership or limited liability
company) action of Investor, and this Agreement, when duly executed and
delivered by Investor, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms against Investor, except as enforcement
hereof may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws or court decisions affecting enforcement of
creditors’ rights generally and except as enforcement hereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
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(iv) No state,
federal or foreign regulatory approvals, permits, licenses or consents are
required for Investor to enter into this Agreement or purchase the Investor
Shares.
(v) From the
time Investor became aware of the offering of the Offered Shares, until such
time that the Company publicly announces the transactions contemplated by this
Agreement (which the Company covenants and agrees shall be no later than 8:30
a.m. Eastern Daylight Time on June 22, 2009), Investor has not taken, and will
not take, any action, directly or indirectly, to do or agree to do any of the
following with respect to the securities of the Company: (1) to sell any such
securities; (2) to effect any short sale, whether or not against the box; (3) to
establish any “put equivalent position” (as defined in Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)); (4) to
acquire or grant any other right (including, without limitation, any put or call
option) with respect to the Common Stock or with respect to a security that
derives any significant part of its value from the Common Stock; or (5) to
engage in any other transaction that xxxxxx or may hedge the Investor’s position
in the Investor Shares or otherwise transfers the risk of ownership of the
Investor Shares.
(vi) Investor
shall not issue any press release or make any other public announcement relating
to this Agreement unless (i) the content thereof is mutually agreed to by the
Company and Investor, or (ii) Investor is advised by its counsel that such press
release or public announcement is required by law.
(vii) If
Investor is outside the United States, Investor will comply with all applicable
laws and regulations in each foreign jurisdiction in which it purchases, offers,
sells or delivers the Investor Shares or has in its possession or distributes
any offering material, in all cases at its own expense.
(viii) Investor
understands that nothing in this Agreement or any other materials presented to
Investor in connection with the offer and sale of the Investor Shares
constitutes legal, tax or investment advice. Investor has consulted
such legal, tax and investment advisors of its own as Investor, in its sole
discretion, has deemed necessary or appropriate in connection with Investor’s
purchase of the Investor Shares.
(ix) Investor
hereby acknowledges that it is not acting as a member of a “group” (as such term
is defined in Rule 13d of the Exchange Act) with any other investor, other
than funds affiliated with the Investor, in connection with the offering and
sale of the Investor Shares.
(x) Investor
is a not a “Benefit Plan Investor” as defined in Section 3(42) of the
Employee Retirement Income Security Act of 1974 (“ERISA”), which includes an
“employee benefit plan” as defined in Section 3(3) of ERISA, that is subject to
Part 4 of Title I of ERISA, a “plan” covered by Internal Revenue Code section
4975, or an entity whose underlying assets include plan assets of either of the
foregoing.
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(xi) There is
no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(b) Company Representations, Warranties
and Covenants. The Company hereby represents, warrants and agrees as
follows:
(i) The
Company has been duly incorporated and has a valid existence and the
authorization to transact business as a corporation under the laws of the State
of Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except for such
jurisdictions wherein the failure to be so qualified and in good standing would
not individually or in the aggregate have a material adverse effect on the
business, results of operations or financial condition of the Company and its
subsidiaries taken as a whole (a “Material Adverse Effect”).
(ii) Each
subsidiary of the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except for such
jurisdictions wherein the failure to be so qualified and in good standing would
not individually or in the aggregate have a Material Adverse
Effect. Exhibit 21.1 to the Company’s Annual Report on Form 10-K for
the fiscal year ended December 28, 2007 lists all material subsidiaries of the
Company. Except for qualifying shares, the Company owns all of the
outstanding capital stock or other voting securities of each such subsidiary,
directly or indirectly, free and clear of any lien and free of any other
limitation or restriction (including any restriction on the right to vote, sell
or otherwise dispose of such capital stock or other voting securities), and free
and clear of any rights of other parties to acquire such
securities.
(iii) The
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby are within the corporate
powers of the Company and have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement, when duly
executed and delivered by the parties hereto, will constitute a valid and
legally binding instrument of the Company enforceable in accordance with its
terms, except as enforcement hereof may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws or court
decisions affecting enforcement of creditors’ rights generally and except as
enforcement hereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
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(iv) The
Investor Shares have been duly authorized by the Company, and when issued and
delivered by the Company against payment therefor as contemplated by this
Agreement, the Investor Shares will be validly issued, fully paid and
nonassessable, and will conform to the description of the Common Stock contained
in the Prospectus.
(v) The
execution and delivery of this Agreement do not, and the compliance by the
Company with the terms hereof will not, (i) violate the Certificate of
Incorporation (as amended to date) of the Company or the By-Laws (as amended to
date) of the Company, (ii) result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of their properties or assets are subject,
or (iii) result in a violation of, or failure to be in compliance with, any
applicable statute or any order, judgment, decree, rule or regulation of any
court or governmental, regulatory or self-regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets, except where such breach, violation, default or the
failure to be in compliance would not individually or in the aggregate have a
Material Adverse Effect or adversely affect the ability of the Company to issue
and sell the Investor Shares; and no consent, approval, authorization, order,
registration, filing or qualification of or with any such court or governmental,
regulatory or self-regulatory agency or body is required for the valid
authorization, execution, delivery and performance by the Company of this
Agreement or the issuance of the Investor Shares, except for such consents,
approvals, authorizations, registrations, filings or qualifications as may be
required under the Securities Act or state securities or “blue sky” laws and
have been or will be obtained and that have been or will be made in connection
with the listing of the Investor Shares on the Nasdaq Global
Market.
(vi) The
Company meets the requirements for the use of Form S-3 under the Securities Act
for the primary issuance of securities. The Registration Statement
has been declared effective by the Commission and at the time it became
effective, and as of the date hereof, the Registration Statement complied and
complies with Rule 415 under the Securities Act. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been initiated or, to the Company’s
knowledge, threatened by the Commission. On the effective date of the
Registration Statement, the Registration Statement complied, on the date of the
Prospectus, the Prospectus will comply, and at the date of the Closing, the
Registration Statement and the Prospectus will comply, in all material respects
with the applicable provisions of the Securities Act and the applicable rules
and regulations of the Commission thereunder; on the effective date of the
Registration Statement, the Registration Statement did not, on the date of the
Prospectus, the Prospectus did not, and at the date of the Closing, the
Registration Statement and the Prospectus, will not, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made (with respect to the Prospectus), not
misleading; and when filed with the Commission, the documents incorporated by
reference in the Registration Statement and the Prospectus, complied or will
comply in all material respects with the applicable provisions of the Exchange
Act, and the applicable rules and regulations of the Commission
thereunder. There is no material document of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described or filed as
required.
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(vii) The
consolidated financial statements and financial schedules of the Company
included or incorporated by reference in the Registration Statement and the
Prospectus comply as to form with the applicable accounting requirements of the
Securities Act and have been prepared in conformity with generally accepted
accounting principles (except, with respect to the unaudited consolidated
financial statements, for the footnotes and subject to customary audit
adjustments) applied on a consistent basis, are consistent in all material
respects with the books and records of the Company, and accurately present in
all material respects the consolidated financial position, results of operations
and cash flow of the Company and its subsidiaries as of and for the periods
covered thereby.
(viii) The
Company and each of its subsidiaries have good and marketable title to all
properties and assets reflected as owned in the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements (including all notes
included therein), or disclosed in the Prospectus, or that are not material to
the Company and its subsidiaries taken as a whole. The Company and
each of its subsidiaries hold their respective leased real and personal
properties under valid and binding leases, except where the failure to do so
would not reasonably be expected to individually or in the aggregate have a
Material Adverse Effect.
(ix) The
Company has filed all necessary federal and state income and franchise tax
returns and has paid all taxes shown as due thereon or has filed all necessary
extensions, and there is no tax deficiency that has been, or to the knowledge of
the Company might be, asserted against the Company or any of its properties or
assets that would in the aggregate or individually reasonably be expected to
have a Material Adverse Affect.
(x) There are
no authorized options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or its
subsidiaries other than those described in the Registration Statement and the
Prospectus. There are no holders or beneficial owners of securities
of the Company having rights to registration thereof whose securities have not
been previously registered or who have not waived such rights with respect to
the registration of the Company’s securities on the Registration Statement,
except where the failure to obtain such waiver would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.
(xi) The
Company has not taken and will not take any action that constitutes or is
designed to cause or result, or that might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Offered Shares.
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(xii) Other
than as disclosed in the Prospectus, the Company together with its subsidiaries
owns and possesses all right, title and interest in and to, or, to the Company’s
knowledge, has duly licensed from third parties, all patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names, copyrights,
service marks and other proprietary rights (“Intellectual Property”) material to
the business of the Company and each of its subsidiaries taken as a whole as
currently conducted and as described in the Prospectus. Neither the
Company nor any of its subsidiaries has received any notice of infringement or
misappropriation from any third party that has not been resolved or disposed of
and, to the Company’s knowledge, neither the Company nor any of its subsidiaries
has infringed or misappropriated the Intellectual Property of any third party,
which infringement or misappropriation would individually or in the aggregate
have a Material Adverse Effect. Further, other than as disclosed in
the Prospectus there is no pending or, to the Company’s knowledge and except as
would not individually or in the aggregate have a Material Adverse Effect,
threatened action, suit, proceeding or claim by governmental authorities or
others that the Company is infringing a patent, and there is no pending or, to
the Company’s knowledge and except as would not individually or in the aggregate
have a Material Adverse Effect, threatened legal or administrative proceeding
relating to patents and patent applications of the Company, other than
proceedings initiated by the Company before the United States Patent and
Trademark Office and the patent offices of certain foreign jurisdictions, which
are in the ordinary course of patent prosecution. The conduct of the
business of the Company and each of its subsidiaries is in compliance in all
respects with applicable laws, rules and regulations of governmental and
regulatory bodies, except where the failure to be in compliance would not
individually or in the aggregate have a Material Adverse Effect.
(xiii) The
Company is not, and does not intend to conduct its business in a manner in which
it would become, an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
(xiv) All
offers and sales of the Company’s capital stock prior to the date hereof were at
all relevant times registered pursuant to the Securities Act or exempt from the
registration requirements of the Securities Act and were duly registered with or
the subject of an available exemption from the registration requirements of the
applicable state securities or blue sky laws, except where the failure to do so
would not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(xv) The
Company has filed with the Nasdaq Global Market a Notification of Listing of
Additional Shares with respect to the Investor Shares required by the rules of
the Nasdaq Global Market and has not received a notice from the Nasdaq Global
Market that such notification is insufficient. The offer and sale of
the Offered Shares do not require stockholder approval under Rule 5635 of the
Nasdaq Stock Market Rules.
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(xvi) There is
no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(xvii) There are
no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company
to, or for the benefit of, any of the officers or directors of the
Company.
5. Conditions. The
obligation of each Investor to purchase and acquire the Investor Shares
hereunder shall be subject to the condition that all representations and
warranties and other statements of the Company shall be true and correct as of
and on each of the date of this Agreement and the date of the Closing, and the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed.
6. Miscellaneous.
(a) Fees and
Expenses. Each of the parties hereto shall be responsible for
its own expenses incurred in connection with the transactions contemplated
hereby.
(b) Binding Agreement;
Assignment. This Agreement shall be binding upon, and shall
inure solely to the benefit of, each of the parties hereto, and each of their
respective heirs, executors, administrators, successors and permitted assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The Investors may not assign any of these rights or
obligations hereunder to any other person or entity without the prior written
consent of the Company.
(c) Entire Agreement. This
Agreement constitutes the entire understanding between the parties hereto with
respect to the subject matter hereof and may be amended only by written
execution by each of the parties hereto. Upon execution by the
Company and the Investors, this Agreement shall be binding on each of the
parties hereto.
(d) Governing Law. THIS
AGREEMENT SHALL BE ENFORCED, GOVERNED AND CONSTRUED IN ALL RESPECTS IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICTS OF LAWS PRINCIPLES.
(e) Notices. All notices,
requests, consents and other communication hereunder shall be in writing, shall
be mailed by first class registered or certified mail, or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
if to the
Company, to:
STAAR
Surgical Company
0000
Xxxxxx Xxx.
Xxxxxxxx,
XX 00000
Attn: Xxxxxxx
Xxxxxxx
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or to
such other Person at such other place as the Company shall designate to the
Investors in writing; and if to Investor, at the address set forth on the
Investor Signature Page hereto, or at such other address or addresses as the
Investor may from time to time furnish to the Company in writing for such
purpose.
(f) Counterparts. This
Agreement maybe executed in any number of counterparts and by the parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one in the same
agreement.
IN
WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement as of
the date first above written.
STAAR
SURGICAL COMPANY
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_____________________________
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Xxxxxxx
Xxxxxxx
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Vice
President and Chief Financial
Officer
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Investor
Signature Pages Follow
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Name
of Investor:
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Signature
of Authorized Signatory of Investor:
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Name
of Authorized Signatory:
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Title
of Authorized Signatory:
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Email
Address of Investor:
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Address
for Notice to Investor:
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Tax
ID No.:
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Contact
Name:
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Telephone
No.:
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Name
of DTC Participant (broker-dealer at
which
the account or accounts to be credited
with
the shares are maintained), if applicable:
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DTC
Participant Number, if applicable:
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Name
of Account at DTC Participant being
credited
with the shares, if applicable:
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Account
Number at DTC Participant being
credited
with the shares, if applicable:
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Contact
Name at Broker:
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Broker’s
Telephone Number:
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Investor
Shares:
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Aggregate
Purchase Price:
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INVESTOR
SIGNATURE PAGE
Schedule
I
Company Wire Transfer
Address:
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