EXHIBIT 99.1
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.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Purchaser as follows:
2.1 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.
2.2 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.
2.3 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
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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").
2.4 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.
2.5 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.
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2.6 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.
2.7 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).
2.8 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.
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2.9 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.
2.10 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.
2.11 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.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Company the following as to
itself:
3.1 Organization. The Purchaser is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
3.2 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.
3.3 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
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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.
3.4 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
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4. COVENANTS.
4.1 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).
4.2 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.
4.3 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.
5. EXPENSES; INDEMNITY.
5.1 Expenses. Each party shall bear its own expenses incurred in
connection with the proposed transaction.
5.2 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
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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).
5.3 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.
6. NOTICES.
6.1 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:
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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.
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7. TERMINATION.
7.1 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.
7.2 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.
8. MISCELLANEOUS.
8.1 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.
8.2 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.
8.3 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.
8.4 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
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THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED
ENTIRELY IN SUCH STATE.
8.5 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.
8.6 Waiver of Jury Trial. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY
JURY.
8.7 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.
8.8 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
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otherwise and provided that (1) the assignee assumes in writing all obligations
hereunder and (2) the Company remains liable to the extent still existing.
8.9 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.
8.10 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.
8.11 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.
8.12 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.
8.13 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.
* * * * *
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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 Xxxxxxxxx
Title: President and CEO
SAFEGUARD DELAWARE, INC.
/s/N.J. Xxxxxxx
----------------------------------
By: N.J. 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
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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
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"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.
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