EXHIBIT 99.14
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE Agreement (this "AGREEMENT") dated as
of February 26, 2003 among ChromaVision Medical Systems, Inc., a Delaware
corporation (the "COMPANY") and Safeguard Delaware, Inc., a Delaware corporation
(the "PURCHASER"). Certain terms are used herein as defined in Annex 1 hereto or
elsewhere in this Agreement.
BACKGROUND
The Company desires to sell to the Purchaser, and the
Purchaser desires to purchase shares of the Common Stock of the Company, $.01
par value, for an aggregate of $5,000,000 in a private placement exempt from the
registration requirements of the Securities Act of 1933, all on terms subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING PREMISES AND THE
COVENANTS CONTAINED HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO
HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Common Shares.
1.1 Purchase and Sale of Common Shares. Upon the terms and
conditions contained herein, the Company shall issue and sell to the Purchaser
and, subject to and in reliance upon the representations, warranties, terms and
conditions of this Agreement, the Purchaser shall purchase from the Company
4,646,408 shares of Common Stock of the Company (the "Purchase Shares") at a
price of $1.07610 per share or $5,000,000 in the aggregate.
1.2 Closing. Such purchase and sale referred to in Section 1.1
shall take place at a closing (the "CLOSING") to be held at the offices of
Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx on
the date hereof, or on such other date and at such time as may be mutually
agreed upon by the parties (the "CLOSING DATE"). At the Closing, (i) the Company
will issue and deliver certificates evidencing the Purchase Shares, registered
in the name of the Purchaser against payment to the Company of the purchase
price payable by the Purchaser, payable by wire transfer of immediately
available funds in accordance with wire transfer instructions to be delivered to
the Purchaser by the Company prior to the Closing and (ii) the Company and the
Purchaser will enter into a Registration Rights Agreement in the form of Annex 2
hereto. (This Agreement and the Registration Rights Agreement are referred to as
the "TRANSACTION DOCUMENTS".)
1.3 Use of Proceeds. The Company agrees that it shall use the
net proceeds from the sale of the Purchase Shares for (i) any legally permitted
general corporate purposes reasonably relating to or incurred in connection with
the performance of the Company's business plan in the form last presented to and
approved by the board of directors of the Company prior to the date of this
Agreement, including amendments approved by a majority of the board before
and after the date of this Agreement (the "BUSINESS PLAN"), and (ii) the payment
of expenses incurred in connection with this transaction as provided for in
Section 5.1. Nothing in this Section 1.3 is intended to or shall constitute a
waiver by the Purchaser of, or approval by it in connection with, any of the
covenants set forth in the Securities Purchase Agreement dated as of June 13,
2002 among the Company, Purchaser and Safeguard Scientifics, Inc.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Purchaser as follows:
1.4 Organization and Qualification; Material Adverse Effect.
The Company is a corporation duly incorporated and existing in good standing
under the laws of the State of Delaware and has the requisite corporate power to
own its properties and to carry on its business as now being conducted. The
Company does not have any direct or indirect subsidiaries other than the
subsidiaries listed in the Pre-Agreement SEC Documents (as defined below). Each
of the Company and its subsidiaries is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification
necessary other than those in which the failure so to qualify would not have a
Material Adverse Effect. As applied to the Company "MATERIAL ADVERSE EFFECT"
means any adverse effect on the business, operations, prospects, properties or
condition (financial or otherwise) of the Company or such other entity with
respect to which such term is used and which is material to the Company and its
subsidiaries taken as a whole, and any material adverse effect on the
transactions contemplated by, or the rights or remedies of the Company or
obligations of the other parties under the, Transaction Documents taken
together.
1.5 Authorization; Enforcement. (i) The Company has all
requisite corporate power and authority to enter into and perform the
Transaction Documents and to issue the Purchase Shares in accordance with the
terms hereof, (ii) the execution and delivery of the Transaction Documents by
the Company and the consummation by it of the transactions contemplated hereby
and thereby, including the issuance of the Purchase Shares, have been duly
authorized by all corporate action required under applicable law, and no further
consent is required, (iii) the Transaction Documents have been duly executed and
delivered by the Company, and (iv) the Transaction Documents constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of creditors'
rights and remedies or by other equitable principles of general application. The
transactions contemplated by the Transaction Documents have been (x) negotiated
and approved by a special committee of the board of directors of the Company
formed for the purpose of considering such transactions and (ii) approved by the
majority vote of the disinterested directors of the Company.
1.6 Capitalization. The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock, 200,000 shares of Series
C Convertible Preferred Stock and 12,500 shares of Series D 5% Convertible
Preferred Stock ("Series D Preferred Stock"), of which there are 32,846,085
shares of Common Stock issued and outstanding. Except as set forth on SCHEDULE
2.3, no shares of Common Stock and no shares of preferred stock are reserved for
issuance to persons other than the Purchaser. All of the outstanding shares of
the Common Stock and preferred stock have been validly issued and are fully paid
and non-assessable. Except as set
forth in Schedule 2.3, no shares of capital stock are entitled to preemptive
rights and there are no outstanding options or outstanding warrants for shares
of Common Stock. Except as set forth on SCHEDULE 2.3, there are no other scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights exchangeable for or convertible into, any
shares of capital stock of the Company, or contracts, commitments,
understandings, or arrangements by which the Company is or may become bound to
issue additional shares of capital stock of the Company or options, warrants,
scrip, rights to subscribe to, or commitments to purchase or acquire, any
shares, or securities or rights convertible or exchangeable into shares, of
capital stock of the Company. The Company has furnished each Purchaser with a
true and correct copy of the Company's Certificate of Incorporation (the
"CHARTER"), as in effect on the date hereof, and a true and correct copy of the
Company's By-Laws, as in effect on the date hereof (the "BY-LAWS").
1.7 Issuance of Securities. The Purchase Shares are duly
authorized and reserved for issuance and, upon issuance in accordance with the
terms of this Agreement, the Purchase Shares will be validly issued, fully paid
and non-assessable, free and clear of any and all Liens, claims and
encumbrances, and, subject to the registration of such shares in accordance with
the applicable provisions of the Securities Act of 1933, as amended (the
"SECURITIES ACT" or the "ACT"), the Purchase Shares have been listed on the
Nasdaq National Market, and, upon issuance of such shares, the holders of such
Shares shall be entitled to all rights and preferences then accorded to a holder
of Common Stock. The outstanding shares of freely tradable Common Stock are
currently quoted on the Principal Market.
1.8 No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby and the issuance of the
Purchase Shares do not and will not (i) result in a violation of the Company's
Charter or By-Laws, (ii) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture, patent, patent license or instrument
to which the Company or any of its subsidiaries is a party (collectively,
"COMPANY AGREEMENTS"), (iii) result in a violation of any federal, state, local
or foreign law, rule, regulation, order, judgment or decree (including federal
and state securities laws and regulations) applicable to the Company or any of
its subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected, or (iv) conflict with, constitute a default
under, or result in a violation of any rule or regulation of, or any agreement
with, a self-regulatory authority, except (other than in the case of clause (i)
above) where such violation would not reasonably be expected to have a Material
Adverse Effect. The business of the Company and its direct and indirect
subsidiaries is being conducted in material compliance with (i) its Charter and
By-Laws, (ii) all Company Agreements, and (iii) all applicable laws, ordinances
or regulations of any Governmental Authority, except (other than in the case of
clause (i) above) where such violation would not reasonably be expected to have
a Material Adverse Effect. Except as set forth on SCHEDULE 2.5, the Company is
not required under federal, state, local or foreign law, rule or regulation to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under the Transaction Documents, or to
issue and sell the Securities, except for the registration provisions provided
in the Registration
Rights Agreement being entered into with the Purchase concurrently with this
Agreement (the "Registration Rights Agreement") and the requirements, of the
Nasdaq Stock Market, Inc.
1.9 SEC Documents; No Non-Public Information. The Common Stock
of the Company is registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the Company and its
subsidiaries have filed all reports, schedules, forms, statements and other
documents required to be filed by them with the Securities and Exchange
Commission ("SEC") since December 31, 1999 pursuant to the reporting
requirements of the Exchange Act, including all such proxy information and
registration statements, and any amendments thereto required to have been filed
as of the Closing Date (all of the foregoing including filings incorporated by
reference therein, together with all registration statements filed under the
Securities Act, being referred to herein as the "SEC DOCUMENTS"). As of their
respective filing dates, the SEC Documents complied in all material respects
with the requirements of the Exchange Act and the Securities Act, as the case
may be, and the rules and regulations of the SEC promulgated thereunder and
other federal, state and local laws, rules and regulations applicable to such
SEC Documents, and none of the SEC Documents contained any untrue statement of a
material fact or omitted 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, not misleading. The SEC Documents
contain all material information concerning the Company and its subsidiaries
required to be disclosed therein as of the dates thereof, and no event or
circumstance has occurred prior to the date hereof which would require the
Company to disclose such event or circumstance in order to make the statements
in the SEC Documents not misleading but which has not, or will have not, been so
disclosed or which will be disclosed in the current report on Form 8-K to be
filed pursuant to Section 4.6.
1.10 Financial Statements. The financial statements (including
any related notes) of the Company and its subsidiaries included in the SEC
Documents complied as to form and substance in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC or other applicable rules and regulations with respect thereto in effect
at the time of their filing with the SEC. Such financial statements were
prepared in accordance with United States GAAP applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly presented in all material respects
the financial position of the Company and its subsidiaries as of the respective
dates thereof and the results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments).
1.11 Poison Pill Provisions. The Company has amended the
Rights Agreement, dated as of February 10, 1999, between the Company and Xxxxxx
Trust Company of California, as amended (the "RIGHTS AGREEMENT") to exclude
Purchaser and any of its Affiliates from the definition of "15% Stockholder" (as
that term is defined in the Rights Agreement), and, accordingly, the Company has
taken all action necessary to ensure that no Rights (as that term is defined in
the Rights Agreement) have been exercised or are exercisable in connection with
the execution and delivery of the Transaction Documents or the consummation of
the transactions contemplated hereby or thereby. The Board of Directors of the
Company (at a meeting duly
called and held) has, by the unanimous vote of all directors present, approved
such amendment to the Rights Agreement.
1.12 No Litigation. Except as set forth in Schedule 2.9 or the
reports or documents filed at least five Trading Days prior to the Closing Date
by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act (the
"PRE-AGREEMENT SEC DOCUMENTS"), no litigation or claim (including those for
unpaid taxes) against the Company or any of its subsidiaries is pending or, to
the Company's knowledge, threatened, and, to the Company's knowledge, no other
event has occurred which, if determined adversely, could reasonably be expected
to result in litigation which would have a Material Adverse Effect. There is no
legal or regulatory proceeding or inquiry described in the Pre-Agreement SEC
Documents that could reasonably be expected to have a Material Adverse Effect.
1.13 Application of Takeover Protections. The Company and its
board of directors have taken all necessary action, if any, in order to render
inapplicable any anti-takeover provision contained in the Company's Charter or
By-Laws or Delaware law which is or could become applicable to Purchaser or, to
the extent such action is permissible under Delaware law, its assignees and
transferees, as a result of the transactions contemplated by the Transaction
Documents, including, without limitation, (i) the Company's issuance of the
Purchase Shares and (ii) the Purchaser's ownership of the Purchase Shares.
1.14 Completeness of Disclosure. The Company has delivered to
the Purchaser true and complete copies of each agreement, contract, commitment
or other document (or summaries thereof) that is referred to specifically in the
Schedules or that has been requested in writing by the Purchaser. Neither this
Agreement nor any annex or schedule hereto or certificate provided pursuant
hereto contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact required to be stated herein or therein or
necessary to make any statement herein or therein not misleading.
2. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Company the following as
to itself:
2.1 Organization. The Purchaser is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
2.2 Authorization; Enforcement. (i) The Purchaser has the
requisite power and authority to enter into and perform the Transaction
Documents and to purchase the Purchase Shares being sold to it hereunder, (ii)
the execution and delivery of the Transaction Documents by the Purchaser and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action, and (iii) the Transaction
Documents constitute valid and binding obligations of the Purchaser enforceable
against it in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of creditors' rights and remedies or by other equitable principles of general
application.
2.3 No Conflicts. The execution, delivery and performance by
the Purchaser of the Transaction Documents and the consummation by the Purchaser
of the transactions contemplated hereby and thereby do not and will not (i)
result in a violation of the Purchaser's certificate of incorporation or
by-laws, or (ii) conflict with any agreement, indenture or instrument to which
the Purchaser is a party, or (iii) result in a violation of any law, rule, or
regulation, or any order, judgment or decree of any court or Governmental
Authority applicable to the Purchaser, except, in the case of clauses (ii) and
(iii), for any such violation or conflict which would not have a Material
Adverse Effect on the Purchaser. As applied to the Purchaser, "MATERIAL ADVERSE
EFFECT" means any adverse effect on the business operations, prospects,
properties or condition (financial or otherwise) of the relevant party which is
material to the relevant party and its consolidated subsidiaries, taken as a
whole, and any material adverse effect on the transactions contemplated by, or
the rights or remedies of the relevant party or the obligations of the other
parties under the Transaction Documents taken together.
2.4 Purchaser Representations.
(a) Access to Other Information. The Purchaser
acknowledges that the Company has made available to the Purchaser the
opportunity to examine such additional documents from the Company and
to ask questions of, and receive full answers from, the Company
concerning, among other things, the Company, its financial condition,
its management, its prior activities and any other information which
the Purchaser considers relevant or appropriate in connection with
entering into the Transaction Documents.
Risks of Investment. The Purchaser acknowledges that the
Purchase Shares have not been registered under the Securities Act. The Purchaser
is capable of assessing the risks of an investment in the Common Stock of the
Company and is fully aware of the economic risks thereof.
Investment Representation. The Purchaser is purchasing the
Purchase Shares for its own account and not with a view to distribution in
violation of any securities laws; provided, however, that by making the
representations herein, such Purchaser does not agree to hold such securities
for any minimum or other specific term and reserves the right to dispose of the
securities at any time in accordance with federal and state securities laws
applicable to such disposition. Nothing in this paragraph (c) is intended to
limit or otherwise affect the obligations of the Purchaser under Section 4.2.
(b) Restricted Securities. The Purchaser acknowledges and
understands that the terms of issuance have not been reviewed by the
SEC or by any state securities authorities and that the Purchase Shares
have been issued in reliance on the certain exemptions for non-public
offerings under the Securities Act, which exemptions depend upon, among
other things, the representations made and information furnished by the
Purchaser.
(c) Ability to Bear Economic Risk. The Purchaser is an
"accredited investor" as defined in Rule 501 of Regulation D, as
amended, under the Securities Act, and it (i) is able to bear the
economic risk of its investment in the Purchase Shares, and
(ii) is able to hold such shares for an indefinite period of time, and
(iii) can afford a complete loss of its investment in such shares.
3. Covenants.
3.1 Public Announcements. Except as provided for herein, no
party hereto shall make any public announcements or otherwise communicate with
any news media with respect to this Agreement or any of the transactions
contemplated hereby without prior consultation with the other party as to the
timing and contents of any such announcement; provided, that nothing contained
herein shall prevent either party from promptly making all filings with
Governmental Authorities and all disclosure as may, in its good faith judgment
after consulting with its legal counsel, be required in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby (in which case the disclosing party shall advise the other
parties and provide them with a copy of the proposed disclosure or filing prior
to making the disclosure or filing).
3.2 Securities Compliance. The Company shall take all action
necessary under applicable law, rule and regulation for the legal and valid
issuance of the Purchase Shares. Without limiting the foregoing, the Company
shall, within one (1) Trading Day following the Closing Date, issue a press
release describing in detail the transactions contemplated in the Transaction
Documents, and within two (2) Trading Days following the Closing Date, file a
current report on Form 8-K with the SEC concerning the transactions contemplated
hereby and attaching this Agreement, together with all Exhibits hereto
(excluding the Schedules), as exhibits to such Form 8-K. Such Form 8-K and any
other Form 8-K and/or press release or other publicity concerning the
Transaction Documents shall contain such information as is reasonably requested
by the Purchaser and as may be reasonably approved by each Purchaser prior to
issuance. If the Company fails to so file a Form 8-K or issue a press release as
required herein within the requisite time period, the Purchaser at any time may
issue a press release covering the transactions contemplated by the Transaction
Documents.
3.3 Form D; Blue Sky Laws. The Company agrees to file a Form D
with respect to the Purchase Shares, as required under Regulation D of the Act
and to provide a copy thereof to the Purchaser promptly after such filing. The
Company shall, on or before the Closing Date, take such action as the Company
shall have reasonably determined is necessary to qualify the applicable Purchase
Shares for sale to each Purchaser at the Closing under applicable securities or
"blue sky" laws of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such action so taken
to each Purchaser on or prior to the Closing Date.
4. Expenses; Indemnity.
4.1 Expenses. Each party shall bear its own expenses incurred
in connection with the proposed transaction.
4.2 Indemnification.
(a) In consideration of the Purchaser's execution and
delivery of this Agreement and the Registration Rights Agreement and in
addition to all of the
Company's other obligations under the Transaction Documents, the
Company shall defend, protect, indemnify and hold harmless the
Purchaser and all of its officers, directors and employees, and any of
the foregoing persons' agents or other representatives (including,
without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "Indemnitees") from
and against any and all actions, causes of action, suits, claims,
losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is
a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys' fees and disbursements (the
"INDEMNIFIED LIABILITIES"), incurred by any Indemnitee as a result of,
or arising out of, or relating to (i) any misrepresentation or breach
of any representation or warranty made by the Company in the
Transaction Documents or any other certificate or document contemplated
hereby or thereby, (ii) any breach of any covenant, agreement or
obligation of the Company contained in the Transaction Documents or any
other certificate or document contemplated hereby or thereby, (iii) any
cause of action, suit or claim brought or made against such Indemnitee
by a third party (other than any cause of action, suit or claim brought
or asserted by or on behalf of any security holders of Safeguard
Scientifics Inc, in their capacity as such) and arising out of or
resulting from the execution, delivery, performance, breach by the
Company or enforcement against the Company of the Transaction Documents
or any certificate or instrument contemplated hereby or thereby and
(iv) the enforcement of this Section 5.2.
(b) In consideration of the Company's execution and
delivery of this Agreement and the Registration Rights Agreement, the
Purchaser shall defend, protect, indemnify and hold harmless the
Company and its officers, directors and employees and any of the
foregoing persons' agents or other representatives (including, without
limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "COMPANY
INDEMNITEES") from and against any and all Indemnified Liabilities,
incurred by any Company Indemnitee as a result of, or arising out of,
or relating to (i) any misrepresentation or breach of any
representation or warranty made by the Purchaser in this Agreement or
any other certificate or document contemplated hereby, or (ii) any
breach of any covenant, agreement or obligation of the Purchaser
contained in this Agreement and (iii) the enforcement of this Section
5.2(b).
4.3 Survival. The obligations of the parties under this
Section 5, Section 4.4 and Section 4.5 will survive the Closing and any transfer
of any of the Purchase Shares, enforcement, amendment or waiver of any provision
of this Agreement or the Registration Rights Agreement, and the termination of
this Agreement or any of the Registration Rights Agreement.
5. Notices.
5.1 Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing, must be delivered by (i) courier, mail or hand
delivery or (ii) facsimile, and will be deemed to have been delivered upon
receipt. The addresses and facsimile numbers for such communications shall be:
If to the Company:
Chromavision Medical Systems, Inc.
00000 Xxxxx Xxxxxxx
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxxxx, Esq.
If to Purchaser:
Safeguard Delaware, Inc.
000 Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Telecopy:
Attention: Chief Financial Officer
with a copy to:
Safeguard Scientifics, Inc.
000 Xxxxx Xxxx Xxxxx
000 Xxxxxxxx
Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
Each party shall provide five (5) days prior written notice to the
other party of any change in address, telephone number or facsimile number.
Written confirmation of receipt (i) given by the recipient of such notice,
consent, waiver or other communication, (ii) mechanically or electronically
generated by the sender's facsimile machine containing the time, date and
recipient facsimile number or (iii) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
6. Termination.
6.1 Termination. This Agreement may be terminated (by written
notice by the terminating party to the other party) and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(a) By mutual written consent of the Purchaser and the
Company;
(b) By the Purchaser or the Company if the Closing has
not occurred on or before the second Business Day following the date
hereof (unless the parties have otherwise agreed in writing); or
(c) By the Purchaser or the Company if a Governmental
Authority or arbitrator shall have issued an order, decree or ruling or
taken any other action, in each case restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement
to occur at the Closing, and such order, decree, ruling or other action
shall not have been lifted.
6.2 Effect of Termination.
(a) In the event of termination of this Agreement as
provided in Section 7.1 hereof, this Agreement shall forthwith become
void and there shall be no liability on the part of either of the
parties, except as set forth in Sections 5, 6, 8.5, 8.6, 8.7, 8.9, 8.10
and this Section 7.2.
7. Miscellaneous.
7.1 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
7.2 Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
7.3 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.
7.4 Governing Law. THIS AGREEMENT AND THE VALIDITY AND
PERFORMANCE OF THE TERMS HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY IN SUCH STATE.
7.5 Consent to Jurisdiction and Service of Process. EACH OF
THE COMPANY AND THE PURCHASER (I) HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT, COURTS OF THE STATE OF
DELAWARE AND OTHER COURTS OF THE UNITED STATES SITTING IN NEW CASTLE COUNTY,
DELAWARE FOR THE PURPOSES OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND (II) HEREBY WAIVES, AND AGREES NOT TO ASSERT IN
ANY SUCH SUIT ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER. EACH OF THE COMPANY AND THE PURCHASER CONSENTS TO
PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY
THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR
LIMIT ANY RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
7.6 Waiver of Jury Trial. EACH PARTY HERETO WAIVES THE RIGHT
TO A TRIAL BY JURY.
7.7 Entire Agreement; Amendments; Waivers. This Agreement
supersedes all other prior oral or written agreements between the Purchaser, the
Company, their Affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the instruments referenced
herein (including the other Transaction Documents) contain the entire
understanding of the parties with respect to the matters covered herein and
therein. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Purchaser, and no provision
hereof may be waived other than by an instrument in writing signed by the party
against whom enforcement is sought. The Purchaser may at any time elect, by
notice to the Company, to waive (whether permanently or temporarily, and subject
to such conditions, if any, as the Purchaser may specify in such notice) any of
its rights (but not obligations) under any of the Transaction Documents to
acquire shares of Common Stock from the Company, in which event such waiver
shall be binding against the Purchaser in accordance with its terms.
7.8 Successors and Assigns. Except as otherwise provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. The Purchaser may assign
some or all of its rights hereunder without the consent of the Company in
connection with any sale or transfer of all or any portion of the Purchase
Shares held by the Purchaser. The Company shall not assign this Agreement or any
rights or obligations hereunder without the prior written consent of the
Purchaser, except in connection with a transfer of its business substantially or
as a whole, whether by merger, consolidation, sale of assets or otherwise and
provided that (1) the assignee assumes in writing all obligations hereunder and
(2) the Company remains liable to the extent still existing.
7.9 No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
7.10 Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
7.11 Remedies. The Purchaser shall have all rights and
remedies set forth in this Agreement and the Registration Rights Agreement and
all rights and remedies which such holders have been granted at any time under
any other agreement or contract and all of the rights which such holders have
under any law. Any person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The Purchaser without prejudice may
withdraw, revoke or suspend its pursuit of any remedy at any time prior to its
complete recovery as a result of such remedy.
7.12 Rescission and Withdrawal Right. Notwithstanding anything
to the contrary contained in (and without limiting any similar provisions of)
the Transaction Documents, wherever the Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does not timely
perform its related obligations within the periods therein provided, then the
Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any such notice, demand or election in whole or
in part without prejudice to its future actions and rights.
7.13 Obligations Absolute. Except as expressly set forth in
the Transaction Documents, the parties' obligations under the Transaction
Documents are unconditional and absolute and not subject to any right of set
off, counterclaim, delay or reduction.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed as of the date and year first written
above.
CHROMAVISION MEDICAL SYSTEMS, INC.
/s/ Xxxx X. Xxxxxxxxx
---------------------------------------
By: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer and President
SAFEGUARD DELAWARE, INC.
/s/ N. Xxxxxxx Xxxxxxx
---------------------------------------
By: N. Xxxxxxx Xxxxxxx
Title: Vice President
ANNEX I
CERTAIN DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"AFFILIATE" shall mean, at any time, and with respect to any Person,
(a) any other Person that at such time directly or indirectly through one or
more intermediaries Controls, or is Controlled by, or is under common Control
with, such first Person, and (b) any Person beneficially owning or holding,
directly or indirectly, 10% or more of any class of voting or equity interests
of the Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
day on which commercial banks in Philadelphia, Pennsylvania are required or
authorized to be closed.
"BUSINESS PLAN" shall have the meaning set forth in Section 1.3.
"BY-LAWS" shall have the meaning set forth in Section 2.3.
"CHARTER" shall have the meaning set forth in Section 2.3.
"CLOSING" shall have the meaning set forth in Section 1.2.
"CLOSING DATE" shall have the meaning set forth in Section 1.2.
"COMPANY AGREEMENTS" shall have the meaning set forth in Section 2.5.
"COMPANY INDEMNITEES" shall have the meaning set forth in Section
5.2(b).
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXPENSES" shall have the meaning set forth in Section 5.1(a).
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time in the United States of America. The term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" shall mean accounting principles which are (a) consistent
with the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors as generally accepted accounting principles, and (b)
such that a certified public accountant would, insofar as the use of
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (except for changes in which said accountants concur) as to financial
statements in which such principles have been properly applied.
"GOVERNMENTAL AUTHORITY" shall mean:
(a) the government of
(i) the United States of America or any State or other
political subdivision thereof, or
(ii) any jurisdiction in which the Company or any of its
subsidiary conducts all or any part of its business, or which
has jurisdiction over any properties of the Company or any of
its subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"INDEMNITEES" shall have the meaning set forth in Section 5.2(a).
"INDEMNIFIED LIABILITIES" shall have the meaning set forth in Section
5.2(a).
"LIEN" shall mean, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or capital lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"MATERIAL ADVERSE EFFECT" shall have the meaning set forth in Sections
2.1 and 3.3.
"PERSON" or "PERSON" shall mean an individual, partnership,
corporation, limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision thereof.
"PRE-AGREEMENT SEC DOCUMENTS" shall have the meaning set forth in
Section 2.9
"PURCHASE SHARES" shall have the meaning set forth in Section 1.1.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement, dated as the date hereof, between the Company and the Purchaser.
"RIGHTS AGREEMENT" shall mean the amended Rights Agreement, dated as of
February 10, 1999, between the Company and Xxxxxx Trust Company of California,
as amended.
"SEC" shall mean the Securities and Exchange Commission.
"SEC DOCUMENTS" shall have the meaning set forth in Section 2.6
"SECURITIES ACT" or the "ACT" shall have the meaning set forth in
Section 2.4.
"SUBSIDIARY" shall mean, as to any Person, any corporation, association
or other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
Subsidiaries). Except where specifically indicated to the contrary, all
references in this Agreement to subsidiaries shall be deemed to refer to all
direct and indirect subsidiaries of the Company.
"TRADING DAY" shall mean (x) if the Common Stock is listed on the New
York Stock Exchange or the American Stock Exchange, a day on which there is
trading on such stock exchange, or (y) if the Common Stock is not listed on
either of such stock exchanges but sale prices of the Common Stock are reported
on an automated quotation system, a day on which trading is reported on the
principal automated quotation system on which sales of the Common Stock are
reported, or (z) if the foregoing provisions are inapplicable, a day on which
quotations are reported by National Quotation Bureau Incorporated.
"TRANSACTION DOCUMENTS" means this Agreement and the Registration
Rights Agreement.
SCHEDULE 2.3
_________ shares subject to options held by present and former officers,
directors and employees of the Company,
602,685 shares subject to warrants outstanding, and
975,000 additional shares subject to the warrant held by Safeguard Delaware,
Inc. issued pursuant to the Securities Purchase Agreement dated as June 13, 2002
among the Company, Safeguard Delaware, Inc. and Safeguard Scientifics, Inc.
Safeguard Delaware, Inc. has a right of first refusal to participate in certain
transactions involving the issuance of shares by the Company pursuant to Section
4.3 of the Securities Purchase Agreement dated as June 13, 2002 among the
Company, Safeguard Delaware, Inc. and Safeguard Scientifics, Inc. and the right
to acquire additional shares pursuant to Section 4.3(d)(i) and (ii) of that
Agreement.
SCHEDULE 2.5
None
SCHEDULE 2.9
None
