EXHIBIT 99.15
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is entered
into as of February 26, 2003 between ChromaVision Medical Systems, Inc., a
Delaware corporation (the "COMPANY") and Safeguard Delaware, Inc., a Delaware
corporation (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Securities Purchase
Agreement, dated as of the date hereof, between the Company and the Purchaser
(the "PURCHASE AGREEMENT"), the Company has agreed to sell and issue to the
Purchaser, and the Purchaser has agreed to purchase from the Company 4,646,408
shares of the Company's common stock, $0.01 par value ("COMMON STOCK") having an
aggregate Purchase Price of $5,000,000 (the "SHARES") as more fully specified
and subject to the terms and conditions set forth in the Purchase Agreement; and
WHEREAS, pursuant to the terms of, and in partial
consideration for the Purchaser's agreement to enter into, the Purchase
Agreement, the Company has agreed to provide the Purchaser with certain
registration rights, as well as certain other rights and remedies as set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Purchase
Agreement and this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agrees as follows:
1. Certain Definitions. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed thereto in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following respective meanings:
"COMMISSION" or "SEC" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
"HOLDER" and "HOLDERS" shall mean the Purchaser and any
transferee of Registrable Securities which have not been sold to the public to
whom the registration rights conferred by this Agreement have been transferred
in compliance with this Agreement.
"REGISTRABLE SECURITIES" shall mean: (i) the Purchased Shares,
(ii) securities issued or issuable upon any stock split, stock dividend,
recapitalization or similar event with respect to the Purchased Shares; and
(iii) any other security issued as a dividend or other distribution with respect
to, in exchange for or in replacement of the securities referred to in the
preceding clauses.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses to be
incurred by the Company in connection with each Holder's registration rights
under this Agreement other than Selling Expenses, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, "blue sky" fees and expenses, reasonable fees and
disbursements of counsel to Holders (using a single counsel selected by a
majority in interest of the Holders if more than one Holder is participating in
a registration hereunder) for a "due diligence" examination of the Company and
review of the registration statement and related documents, and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company).
"SECURITIES ACT" or "ACT" shall mean the Securities Act of
1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities, and all
fees and disbursements of counsel for Holders not included within "Registration
Expenses."
2. Request for Registration.
(a) If the Company receives from a Holder or Holders a written
request that the Company effect a registration with respect to shares of
Registrable Securities held by such Holder or Holders having an aggregate price
to the public (net of underwriters' discounts and commissions) of at least
$500,000 or with respect to at least 300,000 Purchased Shares, the Company will,
as soon as practicable, use commercially reasonable efforts to effect such
registration (including, without limitation, appropriate qualification under
applicable state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution, though negotiated, underwritten or other
transactions or through a combination of such methods of sale at the election of
such Holder, of all or such portion of such the Registrable Securities as are
specified in such request.
(b) Notwithstanding Section 2(a), the Company shall not be
obligated to take any action to effect or complete any such registration
pursuant to this Section 2:
(i) During the period starting with the date
ninety (90) days prior to the Company's estimated date of filing of, and ending
on the date sixty (60) days immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided, that the Company gives notice of its intention
to file such registration statement to the Purchaser within thirty (30) days of
its request for registration; and provided, further that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; however, the Company may not delay a requested
registration under this paragraph if the Company's registration statement will
include no equity securities or securities convertible into equity securities
and the requested registration will not be part of an underwritten public
offering; or
(ii) After the Company has effected two
registrations pursuant to this Section 2; provided that any registration request
that (A) is delayed by the Company pursuant to Section 2(b)(i) or (B) does not
result in a registration being effected, will not count towards such three
registration limit;
(iii) If the Holder requesting registration is
able to sell all of such holder's shares requested to be registered under Rule
144(k) of the Securities and Exchange Commission adopted under the Securities
Act or
(iv) If the Company shall furnish to the Holder
or Holders requesting registration a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 120 days after receipt of the request
of the initiating Holders; provided, however, that the Company may not utilize
this right more than once in any 12-month period.
(c) If the registration pursuant to this Section 2 is effected
through a firm commitment underwritten public offering at the election of the
Holder, the Company shall, together with such Holder, enter into an underwriting
agreement in customary form with a managing underwriter selected by the Holder.
Notwithstanding any other provision of this Section 2, if the managing
underwriter advises the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall so
advise the Holder and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be limited to such amount;
provided, however, that in the event of such limitation on the number of shares
to be underwritten, no securities to be registered for sale by the Company shall
be included unless all shares of Registrable Securities requested by the Holder
to be included in such underwriting are so included.
3. Company Registration.
(a) If at any time or from time to time the Company shall
determine to register any of its equity securities, either for its own account
for the account of a Holder or the account of a stockholder who is not a Holder,
the Company shall:
(i) promptly give the Holders (excluding any
such Holder for whose account the shares are determined to be registered)
written notice thereof; and
(ii) include in such registration (and any
related qualifications including compliance with Blue Sky laws), and in any
underwriting involved therein, all the shares of Registrable Securities
specified in a written request or requests, made within 20 days after the date
of such written notice from the Company, by any such Holder.
(b) If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise each Holder as a part of the written notice given pursuant to Section
3(a)(i). In such event, the right of each Holder to registration pursuant to
this Section 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of shares of Registrable Securities in the
underwriting shall be limited to the extent provided herein. Each Holder shall
(together with the Company and the other stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, no securities to be registered for sale
by Holders shall be included unless all shares to be registered for sale by the
Company to be included in such underwriting are so included. The Company shall
so advise each Holder and the number of shares of Registrable Securities to be
included in the registration and underwriting shall be so limited.
(c) If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, all Holders shall
provide upon request customary lock-up agreements for themselves and their
affiliates by which they agree not sell any of their shares for a period of 180
days from the effective date of the registration statement.
4. Registration on Form S-3.
(a) In case the Company shall receive from a Holder or Holders
a written request that the Company file a registration statement on Form S-3 (or
any successor form to Form S-3) for a public offering of shares of Registrable
Securities having an aggregate price to the public (net of underwriters
discounts and commissions) of at least $500,000 or a public offering of at least
300,000 Purchased Shares and the Company is a registrant entitled to use Form
S-3 to register the shares of Registrable Securities for such an offering, the
Company shall use commercially reasonable efforts to cause such shares of
Registrable Securities to be registered for the offering on such form and to
cause such shares of Registrable Securities to be qualified in such
jurisdictions as such Holder may reasonably request. If such offer is to be an
underwritten offering, the underwriters shall be selected by the Holder or
Holders requesting the registration.
(b) There shall be no limit on the number of registration
requests by Holders pursuant to the preceding paragraph.
(c) The provisions of Section 2(b)(i), (iii), and (iv) and
Section 2(c) shall apply to any request for registration pursuant to Section
4(a).
5. Registration Procedures. In connection with each registration
effected pursuant to Section 2, 3 or 4, the Company shall, except as provided in
Section 2(b) and 4(c):
(a) Promptly prepare and file with the SEC a registration
statement and such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement, or prepare
and file such additional registration statements, as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement in accordance with the
intended methods of disposition by the seller thereof as set forth in the
registration statement (and the disposition of all shares of Registrable
Securities as necessary to comply with this Agreement) and notify each Holder of
the filing and effectiveness of such registration statement and any amendments
or supplements thereto. The Company shall promptly forward to each participating
Holder's counsel a copy of any correspondence or other written communications
with the SEC or other regulatory authority, relating to the registration
statement or the shares of Registrable Securities.
(b) After the registration, furnish to each participating
Holder such number of copies of a current prospectus conforming with the
requirements of the Securities Act and any other documents incident thereto,
copies of the registration statement, any amendment or supplement to such
prospectus or registration statement and any documents incorporated by reference
therein and such other documents as such Holder may from time to time reasonably
request in order to facilitate the disposition of the shares of Registrable
Securities registered on behalf of such Holder.
(c) Use commercially reasonable efforts to register and
qualify the shares of Registrable Securities covered by such registration
statement under such other securities or "blue sky" laws of all United States
jurisdictions (except in any such jurisdiction where the registration and
qualification of the securities covered by such registration statement is exempt
under the laws and regulations of such jurisdiction); provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(d) Notify the participating Holders immediately of the
happening of any event known to the Company (but not the substance or details of
any such event unless specifically requested by any such Holder) as a result of
which the prospectus (including any supplements thereto or thereof and any
information incorporated or deemed to be incorporated by reference therein)
included in such registration statement, as then in effect, includes an untrue
statement of material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and use commercially reasonable eforts
to promptly update and/or correct such prospectus. Notwithstanding the
foregoing, if the Company shall furnish to the Holder or Holders whose
Registrable Securities have been so registered a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company it would be detrimental to the Company and its
stockholders to update and/or correct any such prospectus, the Company shall
have the right to defer updating or correcting such prospectus for a period of
not more than 120 days after the notification to the Holders; provided, however,
that the Company may not utilize this right more than once in any 12-month
period. During any such 120-day or shorter period, the Holders will not deliver
any such prospectus or sell any Registrable Securities in reliance thereon.
(e) Notify each participating Holder immediately of the
issuance by the Commission or any state securities commission or agency of any
stop order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose. The Company shall use its
commercially reasonable efforts to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible time.
(f) Permit a single firm of counsel, selected by the
participating Holders, to review the registration statement and all amendments
and supplements thereto within a reasonable period of time prior to each filing,
and shall not file any document in a form to which such counsel reasonably
objects.
(g) Use commercially reasnable efforts to cause the shares of
Registrable Securities registered by the registration statement to be listed or
quoted on each securities exchange and/or market on which the Common Stock is
then listed and/or quoted and prepare and file any required filings with the
National Association of Securities Dealers, Inc. or any exchange or market where
the Common Stock is then listed and/or traded.
(h) If applicable, take all steps necessary to enable each
participating Holder to avail themselves of the prospectus delivery mechanism
set forth in Rule 153 (or successor thereto) under the Securities Act.
6. Holder Deemed an Underwriter. In the event that a Holder
selling Registrable Securities is deemed to be an underwriter, the Company shall
enter into such customary agreements with such Holder as would customarily be
entered into with an underwriter (excluding provisions for the purchase and sale
of the Common Stock and any discounts or other consideration) and:
(a) make such representations and warranties to such Holder in
form, substance and scope as are customarily made by issuers to underwriters in
secondary offerings;
(b) cause to be delivered, if requested, to such Holder
opinions of independent counsel to the Company, on and dated as of the effective
day of the registration statement, and within 90 days following the end of each
fiscal year thereafter, which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to such Holder and their counsel and
covering, without limitation, such matters as the due authorization and issuance
of the securities being registered and compliance with securities laws by the
Company in connection with the authorization, issuance and registration thereof
and other matters that are customarily given to underwriters in underwritten
offerings, addressed to such Holder;
(c) cause to be delivered, immediately prior to the
effectiveness of the registration statement, and at the beginning of each fiscal
year following a year during which the Company's independent certified public
accountants shall have reviewed any of the Company's books or records, a
"comfort" letter from the Company's independent certified public accountants
addressed to such Holder, stating that such accountants are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily covered by
letters of the independent certified public accountants delivered in connection
with secondary offerings; such accountants shall have undertaken in each such
letter to update the same quarterly during each such fiscal year for which such
books or records are being reviewed so that each such letter shall remain
current, correct and complete as of the end of such accountant's review of the
Company's quarterly financial statements; and each such letter and update
thereof, if any, shall be reasonably satisfactory to such Holder(s);
(d) shall include in such agreements customary indemnification
and contribution provisions to and from underwriters; and
(e) deliver such documents and certificates as may be
reasonably requested by the Holder to evidence compliance with clause (a) above
and with any customary conditions contained in underwriting agreements, if any.
7. Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance with
registration pursuant to this Agreement shall be borne by the Company, and all
Selling Expenses shall be borne by the Purchaser.
8. Registration on Form S-3; Other Forms. In connection with each
registration effected pursuant to this Agreement, the Company shall use
commercially reasonable efforts to qualify for registration on Form S-3 or any
comparable or successor form or forms, or in the event that the Company is
ineligible to use such form, such form as the Company is eligible to use under
the Securities Act.
9. Registration Period. In the case of a registration effected by
the Company pursuant to this Agreement, the Company will use commercially
reasonable efforts to keep such registration effective at all times during the
period commencing on the effective date of the registration statement and
continuing thereafter until the all Registrable Securities covered by such
registration have been sold thereunder.
10. Indemnification.
(a) The Company Indemnity. The Company will indemnify each
Holder, each of its officers, directors and partners, and each person
controlling each Holder, within the meaning of Section 15 of the Securities Act
and the rules and regulations thereunder with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls, within the meaning of
Section 15 of the Securities Act and the rules and regulations thereunder, any
underwriter, including any of the foregoing incurred in any litigation,
commenced or threatened, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any violation by the
Company of its representations to or covenants with the Holders under this
Agreement or any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other document prepared
by the Company (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any state
securities law or in either case, any rule or regulation thereunder applicable
to the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each Holder, each of its officers, directors and partners, and each
person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to a Holder to the extent that any such claim, loss, damage, liability
or expense arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Company by such Holder or the underwriter (if any) therefor and
stated to be specifically for use therein. The indemnity agreement contained in
this Section 10(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent will not be unreasonably withheld).
(b) Holder Indemnity. Each Holder will, severally and not
jointly, if Registrable Securities held by it are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify the Company, each of its directors, officers, partners, and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act and the rules and regulations
thereunder, each other Holder (if any), and each of their officers, directors
and partners, and each person controlling such other Holder(s), against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any violation by the such Holder of its representations to or
covenants with the Company under this Agreement or any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading, and will reimburse
the Company and such other Holder(s) and their directors, officers and partners,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder and stated to be specifically for use
therein, and provided that the maximum amount for which such Holder shall be
liable under this indemnity shall not exceed the net proceeds received by such
Holder from the sale or sales of the Registrable Securities which gave rise to
the claim for indemnification. The indemnity agreement contained in this Section
10(b) shall not apply to amounts paid in settlement of any such claims, losses,
damages or liabilities if such settlement is effected without the consent of
such Holder (which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under
this Section 10 (the "INDEMNIFIED PARTY") shall give notice to the party
required to provide indemnification (the "INDEMNIFYING PARTY") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim in any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section
except to the extent that the Indemnifying Party is materially and adversely
affected by such failure to provide notice. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
11. Contribution.
(a) If the indemnification provided for in Section 10 herein
is unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying each of such Indemnified Parties, shall contribute to the amount
paid or payable by each such Indemnified Party as a result of such losses,
claims, damages or liabilities as between the Company on the one hand and any
Holder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of such Holder in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of any Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by such
Holder.
(b) In no event shall the obligation of any Indemnifying Party
to contribute under this Section 11 exceed the amount that such Indemnifying
Party would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 10(a) or 10(b) hereof had been
available under the circumstances.
(c) The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation (even if the Holders or the underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraphs. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraphs shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this section, no Holder or
underwriter shall be required to contribute any amount in excess of the amount
by which (i) in the case of any Holder, the net proceeds received by such Holder
from the sale of Registrable Securities which gave rise to the necessity for
contribution or (ii) in the case of an underwriter, the amount by which the
total price at which the Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any such case, the amount
of any damages that such Holder or underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
12. Survival. The indemnity and contribution agreements contained
in Sections 10 and 11 and the representations and warranties of the Company
referred to in Section 6(a) shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement or the Purchase Agreement or any underwriting
agreement, (ii) any investigation made by or on behalf of any Indemnified Party
or by or on behalf of the Company, and (iii) the consummation of the sale or
successive resales of the shares of Common Stock.
13. Information by Holders. Each Holder shall reasonably promptly
furnish to the Company such information regarding such Holder and the
distribution and/or sale proposed by such Holder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement. The
intended method or methods of disposition and/or sale (Plan of Distribution) of
such securities as so provided by such Holder shall be included without
alteration in the registration statement covering the shares of Common Stock and
shall not be changed without written consent of such Holder, except that such
Holder may not require an intended method of disposition which, in the
reasonable opinion of counsel to the Company, violates applicable securities
law.
14. Replacement Certificates. The certificate(s) representing the
shares of Common Stock held by a Holder may be exchanged by such Holder at any
time and from time to time for certificates with different denominations
representing an equal aggregate number of shares of Common Stock, as reasonably
requested by such Holder upon surrendering the same. No service charge will be
made for such registration or transfer or exchange.
15. Transfer or Assignment. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The rights granted to the Purchaser by
the Company under this Agreement to cause the Company to register shares of
Common Stock may be transferred or assigned (in whole or in part) to up to two
transferees or assignees of shares of Common Stock, and all other rights granted
to the Purchaser by the Company hereunder may be transferred or assigned to up
to two transferees or assignees of any shares of Common Stock; provided in each
case that the Company must be given written notice by the Purchaser at the time
of or within a reasonable time after said transfer or assignment, stating the
name and address of said transferee or assignee and identifying the securities
with respect to which such registration rights are being transferred or
assigned; and provided, further, that the transferee or assignee of such rights
agrees in writing to be bound by the provisions of this Agreement.
16. Miscellaneous.
(a) Remedies. The Company and the Purchaser acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof, this being in addition to any other remedy to which
any of them may be entitled by law or equity.
(b) 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:
to the Company:
ChromaVision Medical Systems, Inc.
00000 Xxxxx Xxxxxxx
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: 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.
to the Purchaser:
Safeguard Delaware, Inc.
000 Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile:
Attention: Chief Financial Officer
with copies to:
Safeguard Scientifics, Inc.
000 Xxxxx Xxxx Xxxxx
000 Xxxxxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Facsimile: (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.
(c) Waivers. No waiver by any party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any
such right accruing to it thereafter. The representations and warranties and the
agreements and covenants of the Company and the Purchaser contained herein shall
survive the Closing.
(d) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement,
it being understood that all parties need not sign the same counterpart.
(e) Entire Agreement. This Agreement, together with the
Purchase Agreement and the agreements and documents contemplated hereby and
thereby, contains the entire understanding and agreement of the parties, and may
not be modified, amended or terminated except by a written agreement signed by
both parties.
(f) Jurisdiction. 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.
(g) 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.
(h) Jury Trial. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL
BY JURY.
(i) Titles. The titles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
* * * Signature page follows * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPANY:
CHROMAVISION MEDICAL SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CEO & President
PURCHASER:
SAFEGUARD DELAWARE, INC.
By: /s/ N. Xxxxxxx Xxxxxxx
----------------------------------
Name: N. Xxxxxxx Xxxxxxx
Title: Vice President
