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Exhibit 10.18
COMMON STOCK
PURCHASE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
AND
CELLOMICS, INC.
DATED AS OF JUNE 9, 2000
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TABLE OF CONTENTS
Page No.
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SECTION 1 Purchase and Sale of Shares.............................................................................1
1.1. SALE AND PURCHASE OF THE SHARES.................................................................1
1.2. CERTAIN DEFINED TERMS...........................................................................1
SECTION 2 Closing, Payment and Delivery...........................................................................1
2.1. CLOSING DATE....................................................................................1
2.2. PLACE OF CLOSING................................................................................2
2.3. CLOSING PAYMENT AND DELIVERY....................................................................2
SECTION 3 Representations and Warranties of the Company...........................................................2
3.1. ORGANIZATION AND STANDING; ARTICLES AND BY-LAWS.................................................2
3.2. CORPORATE POWER.................................................................................2
3.3. CAPITALIZATION..................................................................................3
3.4. AUTHORIZATION...................................................................................3
3.5. FINANCIAL INFORMATION...........................................................................4
3.6. CHANGES.........................................................................................4
3.7. SUBSIDIARIES....................................................................................5
3.8. GOVERNMENTAL CONSENTS...........................................................................5
3.9. LITIGATION......................................................................................5
3.10. INTELLECTUAL PROPERTY...........................................................................6
3.11. CERTAIN AGREEMENTS..............................................................................6
SECTION 4 Representations and Warranties of Purchaser.............................................................7
4.1. REPRESENTATION AND WARRANTIES OF THE PURCHASER..................................................7
SECTION 5 Conditions to Closing of Purchaser......................................................................8
5.1. REPRESENTATIONS AND WARRANTIES CORRECT..........................................................8
5.2. PERFORMANCE.....................................................................................8
5.3. COMPLIANCE CERTIFICATE..........................................................................9
5.4. OPINION OF COMPANY'S COUNSEL....................................................................9
5.5. GOOD STANDING CERTIFICATE.......................................................................9
5.6. AUTHORIZATION AND CONSENTS......................................................................9
SECTION 6 Conditions to Closing of Company........................................................................9
6.1. REPRESENTATIONS................................................................................10
6.2. PERFORMANCE....................................................................................10
SECTION 7 Covenants..............................................................................................10
7.1. PURCHASER'S RIGHT TO ACQUIRE ADDITIONAL SHARES OF COMMON STOCK.................................10
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Page No.
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7.2. JOINDER TO SHAREHOLDERS' AGREEMENT.............................................................11
SECTION 8 Restrictions on Transferability of Securities; Compliance with Securities Act;
Registration Rights............................................................................12
8.1. RESTRICTIONS ON TRANSFERABILITY................................................................12
8.2. CERTAIN DEFINITIONS............................................................................12
8.3. RESTRICTIVE LEGEND.............................................................................13
8.4. NOTICE OF PROPOSED TRANSFERS AND SECURITIES ACT COMPLIANCE.....................................13
8.5. COMPANY REGISTRATION...........................................................................14
8.6. ADDITIONAL REGISTRATION RIGHTS.................................................................15
8.7. EXPENSES OF REGISTRATION.......................................................................16
8.8. INDEMNIFICATION AND CONTRIBUTION...............................................................16
8.9. INFORMATION BY PURCHASER.......................................................................18
8.10. "MARKET STAND-OFF" AGREEMENT...................................................................18
SECTION 9 Definitions............................................................................................18
SECTION 10 Miscellaneous.........................................................................................20
10.1. GOVERNING LAW..................................................................................20
10.2. SURVIVAL.......................................................................................20
10.3. SUCCESSORS AND ASSIGNS.........................................................................21
10.4. ENTIRE AGREEMENT...............................................................................21
10.5. NOTICES, ETC...................................................................................21
10.6. DELAYS OR OMISSIONS............................................................................22
10.7. RIGHTS; SEPARABILITY...........................................................................22
10.8. AGENT'S FEES AND SERVICES......................................................................22
10.9. LEGAL FEES AND EXPENSES........................................................................23
10.10. TITLES AND SUBTITLES...........................................................................23
10.11. COUNTERPARTS...................................................................................23
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LIST OF EXHIBITS
EXHIBIT A - Amended and Restated Certificate of Incorporation
EXHIBIT B - By-laws
EXHIBIT C - Form of Amended and Restated Shareholder's Agreement
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COMMON STOCK
PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 9th day of June, 2000, by and among CELLOMICS, INC. (the
"Company"), a Delaware corporation having offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a Delaware
corporation, having offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser").
WHEREAS, the Company desires to issue and sell, and the Purchaser
desires to purchase, certain securities of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the Company and the Purchaser hereby
agree as follows:
SECTION 1
PURCHASE AND SALE OF SHARES
1.1. SALE AND PURCHASE OF THE SHARES.
Upon and subject to the terms and conditions of this Agreement and in
reliance upon the representations, warranties and agreements contained herein,
at the Closing the Company will issue and sell to the Purchaser, and the
Purchaser will purchase from the Company at the Closing (as defined below),
153,256 shares of Common Stock (the "Shares") at a purchase price per share of
$31.32 (with a total aggregate purchase price of $4,799,977.92).
1.2. CERTAIN DEFINED TERMS.
Certain capitalized terms used in this Agreement shall have the
respective meanings ascribed to them in Section 9 hereof.
SECTION 2
CLOSING, PAYMENT AND DELIVERY
2.1. CLOSING DATE.
Subject to the terms and provisions of this Agreement, the closing (the
"Closing") of the purchase and sale of Shares hereunder shall be in the amount
set forth in Section 1.1 hereof. The Closing shall be held on the date (the
"Closing Date") of, and immediately following the last to occur of (a) the final
execution and delivery of at least one counterpart of this Agreement by the
Company and the Purchaser, (b) the satisfaction or waiver of all conditions to
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the obligations of the parties to consummate the transactions contemplated
hereby, or such other date as shall have been agreed to by the Company and the
Purchaser and (c) July 1, 2000.
2.2. PLACE OF CLOSING.
The place of the Closing (including the place of delivery to the
Purchaser by the Company of the certificates evidencing all Shares being
purchased at the Closing and the place of payment to the Company by the
Purchaser of the purchase price therefor) shall be at the offices of the Company
or such other place as shall have been agreed to by the Company and the
Purchaser.
2.3. CLOSING PAYMENT AND DELIVERY.
At the Closing, the Purchaser will pay to the Company by wire transfer
the aggregate amount set forth in Section 1.1 hereof; and the Company will
deliver to the Purchaser a certificate or certificates registered in the
Purchaser's name representing the number of Shares to be purchased at the
Closing as set forth in Section 1.1 hereof.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
3.1. ORGANIZATION AND STANDING; ARTICLES AND BY-LAWS.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is in good standing
and duly qualified as a foreign corporation in each jurisdiction wherein the
nature of its activities or properties owned or leased by it makes such
qualification, licensing or domestication necessary. The Company has all
requisite corporate power, material governmental licenses, authorization,
consents and approvals to own the properties owned by it and to conduct the
business as it is being conducted by it and as proposed to be conducted. A true
and correct copy of the Company's Amended and Restated Certificate of
Incorporation and of the Company's By-Laws as presently in effect are attached
hereto as Exhibit A (the "Amended and Restated Certificate") and Exhibit B (the
"By-Laws"), respectively as currently in effect on the date hereof.
3.2. CORPORATE POWER.
The Company has all requisite corporate power to enter into this
Agreement and will have on the Closing Date all requisite corporate power to
sell the Shares to be sold on the Closing Date and to carry out and perform its
obligations under the terms of this Agreement and each of the other Financing
Documents.
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3.3. CAPITALIZATION.
As of June 9, 2000, the Company's authorized capital stock consists of
(a) Six Million (6,000,000) shares of Common Stock, par value $.01 per share of
the Company (the "Common Stock"), of which One Million One Hundred Eighty-Four
Thousand Three Hundred Nineteen (1,184,319) shares are issued and outstanding,
and (b) Two Million Seven Hundred Twenty-Four Thousand Five Hundred (2,724,500)
shares of Preferred Stock, par value $.01 per share of the Company ("Preferred
Stock"), of which (i) Two Million Twenty-Four Thousand Five Hundred (2,024,500)
shares have been designated Series A Preferred Stock, par value $.01 per share
of the Company (the "Series A Preferred"), of which One Million Nine Hundred
Sixty-Six Thousand Six Hundred Eighteen (1,966,618) shares are issued and
outstanding, and (ii) Seven Hundred Thousand (700,000) shares have been
designated Series B Preferred Stock, par value $.01 per share of the Company
(the "Series B Preferred"), of which Six Hundred Ninety-Three Thousand Six
Hundred Seventy-Five (693,675) shares are issued and outstanding. As of June 9,
2000, the Company has (i) issued warrants exercisable for 388,141 and 57,829
shares of Common Stock and preferred stock, respectively and (ii) reserved
742,900 shares of Common Stock for issuance under its stock incentive plans,
duly adopted by the Board of Directors and approved by the Company's
stockholders of which options to purchase 498,032 shares of Common Stock have
been granted. Upon consummation of the Closing, all issued and outstanding
shares of capital stock of the Company will have been duly authorized and
validly issued, will be fully paid and nonassessable and will have been issued
in compliance with all applicable federal and state securities laws. The Company
holds no shares of its capital stock in its treasury.
As of June 9, 2000, except for the option's and warrants indicated as
outstanding in the prior paragraph, there are no outstanding options, warrants,
rights (including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, for the purchase or
acquisition from the Company of any of its shares of capital stock.
3.4. AUTHORIZATION.
All action on the part of the Company and its directors and
stockholders necessary for the authorization, execution, delivery and
performance by the Company of this Agreement and the Financing Documents and for
the consummation of the transactions contemplated herein and therein, and for
the authorization, issuance and delivery of the Shares will be taken prior to
the Closing. This Agreement and each of the Financing Documents is a valid and
binding obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws of general application affecting enforcement of creditors' rights
generally. The execution and delivery by the Company of this Agreement and
compliance herewith, and the offer, and subject to obtaining requisite approvals
of the Company's stockholders, the issuance and sale of the Shares will not,
with or without notice or the passage of time or both, result in any violation
of and will not conflict with, or result in a breach of any of the terms of, or
constitute a default under any provision of, (i) any state or federal law to
which the Company is subject, (ii) the Amended and Restated Certificate or
By-Laws, or (iii) any material mortgage, indenture, agreement, instrument,
judgment, decree, order, rule or regulation or other restriction to which the
Company
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is a party or by which it or any of its property is bound, or may be affected,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of the Company pursuant to any such term or
give any other person or entity the right to accelerate the time for performance
of any obligation of the Company. The Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than restrictions on
transfer under this Agreement and applicable state and federal securities laws
and the Amended and Restated Shareholder's Agreement.
3.5. FINANCIAL INFORMATION.
Copies of the audited balance sheets of the Company dated December 31,
1998 and December 31, 1999 and copies of the unaudited balance sheet of the
Company dated March 31, 2000 (the unaudited balance sheet dated March 31, 2000
being referred to herein as the "Balance Sheet") and the related statements of
operations and accumulated deficit and cash flows for the periods then ended
(collectively, the "Financial Statements") present fairly, in all material
respects, the financial position of the Company as of such dates, have been
prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, except for those changes promulgated and required by
accounting authority, and show all material liabilities, absolute or contingent,
of the Company required to be recorded thereon in accordance with U.S. generally
accepted accounting principles as of the dates thereof.
3.6. CHANGES.
Except as set forth in the Financial Statements, the Company has no
material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in the Financial Statements, (iii) liabilities for costs and expenses
relating to or incurred in connection with the filing of the Company's
registration statement, as amended, on Form S-1 filed with the Commission on
March 3, 2000, (iv) any liability relating to or arising out of the Strategic
Relationship Agreement to be entered into with the Purchaser, (v) continuing
losses from the Company's operations since March 31, 2000 and (vi) liability
attributable to deferred stock compensation and to deemed dividends due to
beneficial conversion features in preferred stock. The Company has not made any
declaration, setting aside or payment or other distribution in respect to any of
its capital stock, or any direct or indirect redemption, purchase, or other
acquisition of any of such stock by the Company, except for any dividends which
accrue under the terms of the Preferred Stock. Since March 31, 2000 there has
not been any event or series of events which have or which, with the passage of
time, are reasonably likely to result in a new material item of disclosure in
the Financial Statements and related footnotes of the Company including but not
limited to:
(a) any change in the assets, liabilities, financial condition or
operating results of the Company from that reflected in the Financial
Statements, except for (i) changes in the ordinary course of business that have
not been, in the aggregate, materially adverse or (ii) that are attributable to
the matters set forth in 3.6(i)-(v) above;
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(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the business, properties,
prospects, or financial condition of the Company;
(c) any waiver by the Company of any material debt owed to it;
(d) any resignation or termination of employment of any officer of the
Company; and the Company is not aware of any impending resignation or
termination of employment of any such officer;
(e) any outstanding loans or guarantees made by the Company to or for
the benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of business; or
or
(f) to the Company's knowledge, any other event or condition of any
character that might materially and adversely affect the business, properties,
or financial condition of the Company, except for factors that also generally
may affect biotechnology companies or material factors that may affect other
technology-based businesses including conditions in financial markets.
3.7. SUBSIDIARIES.
The Company does not own or control, directly or indirectly, any
subsidiaries.
3.8. GOVERNMENTAL CONSENTS.
No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with any foreign or U.S.
federal, state or local governmental authority on the part of the Company is
required in consummation with the consummation of the transactions contemplated
by this Agreement, except for any filings pursuant to Section 25102(f) of the
California Corporate Securities and the rules thereunder, other applicable state
securities laws and Regulation D of the Securities Act.
3.9. LITIGATION.
There is no action, suit, proceeding or investigation pending against
the Company and the Company has not received written notice of any of the
forgoing that questions the validity of this Agreement or the Financing
Documents or the right of the Company to enter into them, or to consummate the
transactions contemplated hereby or thereby, or that might reasonably be
expected to result, either individually or in the aggregate, in any material
adverse changes in the assets, condition or affairs of the Company financially,
or any change in the current equity ownership of the Company, nor is the Company
aware that there is any reasonable basis for the foregoing. The Company is not a
party or subject to the provisions of any order, writ, injunction judgment or
decree of any court or government agency or instrumentality
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applicable to the Company. There is no action, suit, or proceeding by the
Company currently pending, nor has the Company authorized anyone on its behalf
to initiate any such action, suit or proceeding.
3.10. INTELLECTUAL PROPERTY.
To the knowledge of the officers of the Company, it has not received
any written communication from a third party (i) which accuses the Company of
violating or, by conducting its business as proposed, would violate in any
material respect any of the patents, trademarks, service marks, trade names,
copyrights, trade secrets or proprietary rights or processes of any person or
entity and (ii) which third party is continuing to assert its rights against the
Company. To the knowledge of the officers of the Company no employee of the
Company is in violation of a confidentiality agreement between such employee and
a former employer and no employee is using any confidential information of a
former employer in the conduct of the Company's business.
3.11. CERTAIN AGREEMENTS.
(a) Since March 31, 2000, the Company:
(i) has not entered into any agreements or understandings between the
Company and any of its officers, directors, affiliates, or any affiliate thereof
that would have been required to be disclosed in the footnotes to the financial
statements of the Company were they being issued on this date and that are not
already disclosed in the Financial Statements;
(ii) has not made any material loans or advances to any
person, other than advances in the ordinary course of business, or
sold, exchanged or otherwise disposed of any of its assets or rights
which would have a material adverse effect on the Company.
(b) The Company is not actively pursuing:
(i) with any representative of any corporation or corporations
regarding the merger of the Company with or into any such corporation
or corporations; or
(ii) with any representative of any corporation, partnership,
association or other business entity or any individual regarding the
sale, conveyance or disposition of all or substantially all of the
assets of the Company or any transaction or series of transactions in
which more than fifty percent (50%) of the voting power of the Company
would be disposed of.
(c) The Company is not engaged in any discussion regarding any
form of liquidation, dissolution or winding up of the Company.
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SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
4.1. REPRESENTATION AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Company as follows:
(a) AUTHORIZATION. It has full power and authority to enter into this
Agreement and all other documents and instruments executed by it in connection
with the transactions contemplated hereby and thereby, and each such agreement,
document or instrument constitutes its valid and legally binding obligation,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general application affecting enforcement of creditors' rights generally.
(b) ACCREDITED INVESTOR. It is an "accredited investor" as defined in
Rule 501 under the Securities Act.
(c) EXPERIENCE. It is experienced in evaluating and investing in
companies such as the Company.
(d) INVESTMENT. It is acquiring the Shares for investment for its own
account and not with the view to, or for resale in connection with, any
distribution thereof. It understands that the Shares have not been registered
under the Securities Act by reason of an exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of its investment intent as expressed herein.
(e) RULE 144. It understands that the Shares it is purchasing are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. It acknowledges that the Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. It has been advised or is
aware of the provisions of Rule 144 promulgated under the Securities Act, which
permits limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions (which conditions cannot presently be
satisfied).
(f) ACCESS TO DATA. It has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's management, and it
has been furnished with copies of documents which it has requested.
(g) NO RELIANCE ON CERTAIN TYPES OF ADVICE. It is not relying on the
Company for advice with respect to tax considerations, the suitability of his,
her or its investment in the Company or legal or economic considerations.
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(h) NO RELIANCE ON REGISTRATION STATEMENT. Neither the Company nor any
of the underwriters named in the Company's registration statement filed under
the Securities Act by the Company on March 3, 2000, or amendment No. 1 to such
registration statement, with respect to its proposed initial public offering,
delivered a copy of the prospectuses filed in such registration statement to the
Purchaser. The Purchaser is making an investment in the Company in connection
with entering into a strategic relationship with the Company and not due to the
Company's having filed such registration statement for an initial public
offering with the Commission.
(i) MARKETABILITY. It understands that the Company is closely held and
that there is no public market for resale of the Shares. It understands that it
is possible that a market for the Shares will not ever develop. As a
consequence, it understands that it may not be able to liquidate its investment
in the Shares, even in the event of an emergency. It also understands that, for
the foregoing reasons, the Shares may not be readily accepted as collateral for
a loan.
(j) ADDRESSES. The address of the Purchaser is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and such address is the Purchaser's true
and correct residence and/or principal place of business as of the date hereof.
SECTION 5
CONDITIONS TO CLOSING OF PURCHASER
The obligation of the Purchaser to purchase the Shares to be purchased
by it at the Closing is subject to the fulfillment to the satisfaction of
Purchaser on or prior to the Closing Date of each of the following conditions:
5.1. REPRESENTATIONS AND WARRANTIES CORRECT.
The representations and warranties made by the Company in Sections 3.1,
3.2, and 3.4 hereof shall be true and correct in all material respects on the
Closing Date and with respect thereto, after giving effect to the sale and
issuance of the Shares at the Closing. The representations and warranties made
by the Company in Section 3.5 shall be true and correct in all material respects
as of the dates referred to therein. The representations and warranties made by
the Company in Section 3.3, 3.6, 3.7, 3.8, 3.9 and 3.10 shall be true and
correct in all material respects as of June 9, 2000.
5.2. PERFORMANCE.
All covenants, agreements and conditions contained in this Agreement to
be performed or complied with by the Company on or prior to the Closing Date
shall have been so performed or complied with in all material respects.
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5.3. COMPLIANCE CERTIFICATE.
The Company shall have executed and delivered to the Purchaser a
certificate of the President or any Vice President of the Company, dated the
Closing Date, certifying to the fulfillment of the conditions specified in
Sections 5.1 and 5.2 of this Agreement.
5.4. OPINION OF COMPANY'S COUNSEL.
The Purchaser shall have received an opinion of counsel from ▇▇▇▇▇▇▇▇
Ingersoll Professional Corporation, special counsel to the Company, and/or ▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC, counsel to the Company (or successor firms thereto) to the
effect that (i) the Company has been duly incorporated, (ii) that the Company
has full power and authority to conduct its business, (iii) that this Agreement
represents a valid and binding agreement of the Company enforceable against the
Company except for limitations relating to bankruptcy, insolvency, fraudulent
conveyance, general principals of equity and indemnification, (iv) that the
Shares have been duly authorized, validly issued and are fully paid, (v) that
all consents from third parties necessary to consummate this Agreement have been
obtained, (vi) that the consummation of this Agreement and the issuance of the
Shares does not violate the Company's Certificate of Incorporation, Bylaws or
any material agreement of which such counsel is aware and (vii) that there are
no legal actions pending against the Company except as listed in such opinion.
5.5. GOOD STANDING CERTIFICATE.
The Company shall have delivered to the Purchaser a certificate of
recent date from the Secretary of State of the State of Delaware with respect to
the Company's good standing, legal corporate existence, due authorization to
conduct business and the payment of all franchise taxes.
5.6. AUTHORIZATION AND CONSENTS.
All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that are
required in connection with the lawful issuance and sale of the Shares pursuant
to this Agreement shall be obtained and effective as of the Closing.
SECTION 6
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell the Shares to be purchased at the
Closing is subject to the fulfillment to its satisfaction on or prior to the
Closing Date of each of the following conditions:
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6.1. REPRESENTATIONS.
The representations made by the Purchaser pursuant to Section 4.1
hereof shall be true and correct in all material respects when made and shall be
true and correct on the Closing Date.
6.2. PERFORMANCE.
All covenants, agreements and conditions contained in this Agreement to
be performed or complied with by the Purchaser on or prior to the Closing Date
shall have been so performed or complied with in all material respects.
SECTION 7
COVENANTS
7.1. PURCHASER'S RIGHT TO ACQUIRE ADDITIONAL SHARES OF COMMON STOCK.
(a) GENERAL.
Purchaser shall have the right to buy additional shares of Common Stock
upon any future sale by the Company of Common Stock or Common Stock Equivalents
(as defined) to the extent described below; provided, however that the right
shall not apply to any of the following issuances ("Excluded Sales") (i) Common
Stock issued in connection with the conversion rights applicable to the
Company's Series A Preferred, Series B Preferred or other Preferred Stock
(including those issued for the purposes of antidilution protection) or
Securities issued as a dividend in connection with the Preferred Stock, (ii)
securities issued pursuant to a public offering pursuant to an effective
registration statement under the Securities Act in which all of the Preferred
Stock of the Company is converted to Common Stock, (iii) securities issued in
connection with any stock split or stock dividend of the Company,
recapitalizations or the like, (iv) shares of the Company's Common Stock issued
to employees, officers, or directors of, or contractors, consultants or advisors
to, the Company pursuant to stock purchase or stock option plans, stock bonuses
or awards, contracts or other arrangements that are approved by the Company's
Board of Directors, (v) shares of Common Stock or Common Stock Equivalents
issued pursuant to the exercise of any warrant, (vi) shares of the Company's
capital stock issued to a financial institution which has loaned funds to the
Company or issued to equipment lessors, the terms of which are approved by the
Board of Directors, and (vii) any shares of Common Stock required to be issued
pursuant to this Section. For the purposes of this Section 7.1 "Common Stock
Equivalents" shall mean Common Stock, warrants to purchase Common Stock or any
other securities that are convertible into Common Stock, or any other securities
or rights that are exercisable or exchangeable for, or convertible into, Common
Stock. Common Stock and the Common Stock Equivalents collectively being the
"Securities."
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(b) RIGHT TO ACQUIRE ADDITIONAL SHARES.
The Purchaser shall have a right to purchase that number of shares of
Common Stock of the Company which the Company sold in a private placement (other
than the Excluded Sales by Section 7.1(a) above) sufficient to maintain such
Purchaser's proportionate beneficial ownership interest in the Company (on an
as-converted, fully diluted basis calculated as of the date of such sale, and
after giving effect to such sale). If the Company has made any such sale of
Securities, it shall give the Purchaser written notice of the sale. The notice
shall set forth the material terms and conditions of the sale (including the
number of shares), and shall constitute an offer to sell to the Purchaser that
number of shares of Common Stock necessary to maintain Purchaser's proportionate
beneficial ownership interest in the Company (on an as-converted, fully diluted
basis calculated as of the date of such sale, and after giving effect to such
sale), unless such purchase would not be permitted under applicable law in the
reasonable discretion of Company's counsel, in which event, Purchaser shall have
the right to acquire such number of shares of Common Stock as are legally
permitted to be acquired by Purchaser and, upon election of Purchaser, the
Company and Purchaser shall agree in good faith for the purchase by Purchaser of
such number of shares of Common Stock or other equitable arrangements which will
most closely approximate the benefit to the Purchaser intended to be granted by
this Section 7.1(b). The price at which such sales of Common Stock shall be made
to Purchaser will be the price at which the Securities (giving rise to the right
under this Section) were sold, (and in the case of Common Stock Equivalents,
such price shall also include any additional consideration to be paid to the
Company upon the acquisition of Common Stock). The Purchaser may accept such
offer by delivering a written notice of acceptance (an "Acceptance Notice") to
the Company within twenty (20) days after receipt of the Company's offer. If the
Purchaser does not accept such offer or accepts such offer and does not complete
the purchase of such Common Stock within ten (10) days after delivery of the
Acceptance Notice, its rights to purchase under this Section for such sale shall
expire. On an as converted, fully diluted basis shall be determined on the
assumption that included in number of shares of outstanding Common Stock is that
number of shares of Common Stock issuable under any then outstanding Common
Stock Equivalents as well as pursuant to any outstanding options.
(c) EXPIRATION OF RIGHT UNDER SECTION 7.1.
The rights granted under Section 7.1 of this Agreement shall expire
immediately upon an Qualified Public Offering (as defined in the Shareholders'
Agreement) that results in all of the Preferred Stock being converted into
Common Stock.
7.2. JOINDER TO SHAREHOLDERS' AGREEMENT.
The Purchaser, hereby joins as one of the Common Shareholders the
Amended and Restated Shareholders' Agreement dated February 23, 2000 (the
"Shareholders' Agreement") a true and correct copy of which is attached hereto
as Exhibit C. The Purchaser agrees upon request of the Company to execute a
signature page to the Shareholders Agreement confirming that it has become a
party to the Shareholders' Agreement. The Purchaser further agrees upon request
of the Company to execute an amendment to the Shareholders Agreement if the
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Company consummates a potential offering of an additional series of its
preferred stock. Such Shareholders Agreement shall terminate upon an Qualified
Public Offering (as defined in the Shareholders' Agreement) that results in all
of the Preferred Stock being converted into Common Stock.
SECTION 8
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
8.1. RESTRICTIONS ON TRANSFERABILITY.
The Shares will not be transferable, except upon the conditions
specified in this Section 8, which conditions are intended to insure compliance
with the provisions of the Securities Act or, in the case of Section 8.15
hereof, to assist in an orderly distribution of the Company's securities. The
Purchaser will cause any proposed transferee of Shares held by the Purchaser to
agree to take and hold those securities subject to the provisions and upon the
conditions specified in this Section 8.
8.2. CERTAIN DEFINITIONS.
As used in this Section 8, the following terms shall have the following
respective meanings:
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 8.3 hereof.
"REGISTRABLE SECURITIES" shall mean, from time to time, (i) the Shares,
(ii) any shares of Common Stock issued pursuant to Section 7.1 hereof and (iii)
any shares of Common Stock issued as dividends on the Shares.
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 effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in compliance with Section 8.7 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration (but excluding
Selling Expenses and the compensation of regular employees of the Company, which
shall be paid in any event by the Company).
"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 the Purchaser.
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"TERMINATION DATE" shall mean the date that is five (5) years after the
closing of an Initial Public Offering, provided that as of such date the Company
is subject to and is in compliance with the periodic reporting requirements of
the Exchange Act and shares of the Common Stock are actively traded on the
Nasdaq National Market or other national securities exchange. In addition,
"Termination Date" shall mean such date as of which (i) the Company is subject
to and in compliance with the periodic reporting requirements of the Exchange
Act, (ii) shares of the Common Stock are traded as described above, and (iii)
the Purchaser is able, within the ninety (90) day period immediately following
such date, to transfer all of its Registrable Securities in compliance with Rule
144 promulgated by the Commission under the Securities Act.
"OTHER STOCKHOLDERS" shall have the meaning set forth in Section
8.5(a).
8.3. RESTRICTIVE LEGEND.
Each certificate representing (i) the Shares, and any additional shares
of Common Stock acquired pursuant to Section 7.1 (which will have not been
registered under all federal securities laws) or (ii) any other securities
issued in respect of the foregoing upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
otherwise permitted or unless the securities evidenced by such certificate shall
have been registered under the Securities Act) be stamped or otherwise imprinted
with a legend substantially in the following form (in addition to any legend
required under applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
l933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAW OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if with such request, the
Company shall have received either the opinion referred to in Section 8.4(i) or
the "no-action" letter referred to in Section 8.4(a)(ii), to the effect that any
transfer by such holder of the securities evidenced by such certificate will not
violate the Securities Act and applicable state securities laws.
8.4. NOTICE OF PROPOSED TRANSFERS AND SECURITIES ACT COMPLIANCE.
The holder of Restricted Securities by acceptance thereof agrees to
comply in all respects with the provisions of this Section 8.4. Prior to any
proposed transfer of any Restricted Securities (other than under circumstances
described in Sections 8.5 and 8.6 hereof and other than to a member of such
holder's Group, as such term is defined in the Shareholders Agreement), the
holder thereof shall give written notice (or oral notice in the case of
transactions
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in compliance with Rule 144) to the Company of such holder's intention to effect
such transfer. Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall be accompanied (except in
transactions in compliance with Rule 144) by either (i) a written opinion of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation or other legal counsel who shall be
reasonably satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act and applicable state securities laws, or
(ii) a "no-action" letter from the Commission to the effect that the
distribution of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, provided, that in the case of a transfer of Restricted Securities to a
member of a holder's Group (as such term is defined in the Shareholders'
Agreement), no such opinion of counsel or no-action letter shall be necessary,
provided that the transferee agrees in writing to be subject to the restrictions
on transfer of the Restricted Securities to the same extent as if such
transferee were originally a party signatory to this Agreement. Upon receipt by
the Company of such notices and accompanying opinion or "no-action" letter, if
required, the holder of such Restricted Securities shall be entitled to transfer
such Restricted Securities in accordance with the terms of the notice delivered
by the holder to the Company. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear the appropriate restrictive
legend set forth in Section 8.3 above, except that such certificate need not
bear such restrictive legend if such legend is no longer required if the opinion
of counsel or "no-action" letter referred to above is to the further effect that
such legend is not required in order to establish compliance with any provisions
of the Securities Act or applicable state securities laws or if the transaction
is made, to the Company's reasonable satisfaction, in compliance with Rule 144.
Notwithstanding anything to the contrary contained in this Section 8.4, no
holder of Restricted Securities will transfer any of such Restricted Securities
to any member of such holder's Group that is not an "accredited investor" as
defined in Rule 501 under the Securities Act at the time of such transfer,
except under the circumstances described in Sections 8.5 and 8.6 hereof and
except in transactions in compliance with Rule 144.
8.5. COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If the Company shall determine to register
any of its equity securities either for its own account or the account of a
security holder or holders ("Other Stockholders") exercising their respective
demand registration rights, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Commission Rule
145 transaction, or a registration on any registration form which does not
permit secondary sales, the Company will:
(i) promptly give to the Purchaser written notice thereof
(which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue
sky or other state securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the
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Registrable Securities specified in a written request or requests, made
by the Purchaser within fifteen (15) days after receipt of the written
notice from the Company described in clause (i) above, except as set
forth in subsection 8.5(b) below.
(b) UNDERWRITING. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Purchaser as part of the written notice given pursuant to
subsection 8.5(a)(i). In such event, the right of Purchaser to registration
pursuant to Section 8.5 shall be conditioned upon the Purchaser's participation
in such underwriting and the inclusion of the Purchaser's registrable Securities
in the underwriting to the extent provided herein. The Purchaser shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 8.5, if the
underwriter determines that marketing factors require a limitation on the number
of shares to be underwritten, the Purchaser's Registrable Securities shall be
excluded from such registration provided that securities are similarly being
excluded pro rata which are held by persons other than the Preferred
Stockholders with respect to their shares of Preferred Stock and other
Securities which they hold.
(c) TERMINATION. The Company's obligations under this Section 8.5 shall
terminate on the Termination Date.
8.6. ADDITIONAL REGISTRATION RIGHTS.
(a) FORM S-3. The Company shall use its reasonable best efforts to
qualify for the use of Form S-3 or any comparable or successor form or forms of
the Commission; and to that end the Company shall register (whether or not
required by law to do so) the Common Stock under the Exchange Act, in accordance
with the provisions of the Exchange Act following the effective date of the
first registration, if any, of any securities of the Company on Form S-1. After
the Company has qualified for the use of Form S-3, in addition to the rights
contained in the foregoing provisions of Section 8.5, the holders of Registrable
Securities shall have the right to request registrations on Form S-3 (by written
request stating the number of shares of Registrable Securities to be disposed of
and the intended method of disposition of such shares by such holder or
holders), subject only to the following:
(i) No request made under this Section 8.6 shall require a
registration statement requested therein to become effective (i) prior
to ninety (90) days after the effective date of a registration
statement filed by the Company covering a firm commitment underwritten
public offering of Common Stock or (ii) prior to the effective date of
a registration statement referred to in (i) above if the Company shall
theretofore have given written notice of such registration statement to
the holders of Registrable Securities pursuant to subsection 8.5(a) and
shall have thereafter pursued the preparation, filing and effectiveness
of such registration statement with diligence;
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(ii) The Company shall not be required to effect a
registration pursuant to Section 8.6 unless the Registrable Securities
requested to be registered pursuant to this Section 8.6 have a proposed
public offering price of $500,000 or more; and
(iii) The Company shall not be required to effect more than
two (2) registrations pursuant to this Section 8.6, provided that such
registrations have been declared or ordered effective.
The Company shall give notice to all Holders of Registrable Securities
of the receipt of a request for registration pursuant to this Section 8.6 and
shall provide a reasonable opportunity for other holders to participate in the
registration, and, if the intended method of disposition specified as aforesaid
is an underwritten public offering, participation by the Company and other
holders of Common Stock shall be on the basis set forth in Section 8.5(b) above.
Subject to the foregoing, the Company will use its best efforts to effect
promptly the registration of all shares of Registrable Securities on Form S-3 to
the extent requested by the holder or holders thereof for purposes of
disposition.
The Company's Obligations under this Section 8.6 shall terminate, as to
any holder, on the first Termination Date applicable to such holder.
(b) ADDITIONAL RIGHTS. In the event that the "Common Shareholders" as
such term is defined in the Shareholders' Agreement have or are hereafter
granted any registration rights which are more favorable than the rights granted
herein, then the Company shall amend this Agreement so as to include herein for
the benefit of the Holders such more favorable terms.
8.7. EXPENSES OF REGISTRATION.
The Company shall bear all Registration Expenses incurred in connection
with any registration, qualification and compliance by the Company pursuant to
Section 8.5 hereof.
8.8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company, with respect to each registration, qualification and
compliance effected pursuant to this Section 8, will indemnify and hold harmless
the Purchaser, each of its officers, directors and partners, and each party
controlling the Purchaser, and each underwriter, if any, and each party who
controls any underwriter, against all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (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 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 the
Purchaser, each of its officers, directors and partners, and each party
controlling the Purchaser, each such underwriter and each party who controls any
such
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underwriter, for any legal and any other expenses incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable to Purchaser in any such case 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 solely upon written
information furnished to the Company by the Purchaser, and stated to be
specifically for use therein and the Company will not be liable to any
underwriter in any such case 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 solely upon written information furnished to the Company by such
underwriter.
(b) The Purchaser will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify and hold harmless the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each party who controls the
Company or such underwriter, each holder of Registrable Securities and Other
Stockholders and each of their respective officers, directors and partners, and
each party controlling each other holder of Registrable Securities or Other
Stockholders, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on 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 statements therein not misleading, and will reimburse
the Company and such holders of Registrable Securities, Other Stockholders,
directors, officers, partners, parties, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with investigating
or 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 solely in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser and stated to be specifically for use therein; provided, however, that
the obligations of the Purchaser hereunder shall be limited to an amount equal
to the proceeds to the Purchaser of the securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 8.8 (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 or 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
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have been
advised by counsel that actual or potential differing interests or defenses
exist or may exist between the Indemnifying Party and the Indemnified Party, in
which case such expense shall be paid by the Indemnifying Party), 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 8.8. No Indemnifying Party, in the
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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 (i) 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, (ii) includes equitable or other
non-monetary relief, (iii) involves admission of criminal or quasi-criminal
activity, or (iv) any admission or implication of bad faith, unfair dealing,
self-dealing, dishonesty or any similar claim which could reasonably be expected
to be detrimental to or injure such Indemnified Party's reputation or future
business prospects.
8.9. INFORMATION BY PURCHASER.
The Purchaser shall furnish to the Company such information regarding
the Purchaser 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 Section 8.
8.10. "MARKET STAND-OFF" AGREEMENT.
The Purchaser agrees, if requested by the Company and an underwriter of
the Company's Common Stock (or other securities), not to sell or otherwise
transfer or dispose of any Common Stock (or other securities) of the Company
held by it (i) during such period as the Company specifies in its request not to
exceed one hundred eighty (180) days with respect to the Company's firm
commitment initial public offering, and (ii) during such period as the Company
specifies in its request not to exceed ninety (90) days with respect to any
subsequent firm commitment public offering. The Purchaser further agrees, if
requested by the Company and an underwriter of the Company's Common Stock (or
other securities), to enter into a "lock-up" agreement. Such agreement shall be
in writing in a form satisfactory to the Company and such underwriter. The
Company may impose stop-transfer instructions with respect to the shares (or
other securities) held by the Purchaser subject to the foregoing restriction
until the end of said periods.
SECTION 9
DEFINITIONS
As used in this Agreement or in the Financing Documents, capitalized
terms shall have the respective meanings set forth in this Agreement (including,
without limitation, in Section 8.2 hereof) or set forth below or in the Section
of this Agreement referred to below:
AFFILIATE shall mean, as to any entity or person, any natural person,
corporation, business trust, association, company, partnership, joint venture or
other entity or government agency or political subdivision which directly or
indirectly controls, is controlled by or is under common control with such
entity or person.
AMENDED AND RESTATED CERTIFICATE - Section 3.1.
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BALANCE SHEET - Section 3.5.
BOARD shall mean the entire Board of Directors of the Company.
BY-LAWS - Section 3.1.
CALIFORNIA CORPORATE SECURITIES LAW shall mean the California Corporate
Securities Law of 1968, as amended.
CLOSING - Section 2.1.
CLOSING DATE - Section 2.1.
COMMISSION shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
COMMON STOCK - Section 3.2.
COMMON STOCK EQUIVALENTS - Section 7.1.
COMPANY - Preamble.
EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as
amended, and any regulations issued pursuant thereto.
EXCLUDED SALES - Section 7.1.
FINANCING DOCUMENTS shall mean this Agreement and the Shareholders'
Agreement.
FINANCIAL STATEMENTS - Section 3.5.
INITIAL PUBLIC OFFERING shall mean the first underwritten public
offering pursuant to an effective registration statement under the Securities
Act covering the offering and sale of Common Stock for the account of the
Company, on a firm commitment basis.
INDEMNIFIED PARTY - Section 8.8.
INDEMNIFYING PARTY - Section 8.8.
PERSON shall include all natural persons, corporations, business
trusts, associations, companies, partnerships, joint ventures and other entities
and governments and agencies and political subdivisions.
PREFERRED STOCK - Section 3.3.
PURCHASER - Preamble.
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RELATED PARTY shall mean any officer, director, employee or consultant
of the Company or any Subsidiary or any holder of 5% or more of any class of
capital stock of the Company or any Subsidiary or any member of the immediate
family of any such officer, director, employee, consultant or stockholder or any
entity controlled by any such officer, director, employee, consultant or
stockholder or a member of the immediate family of any such officer, director,
employee, consultant or stockholder.
RESTRICTED SECURITIES - Section 8.2.
SECURITIES ACT shall mean the Securities Act of 1933, as amended, and
regulations issued pursuant thereto.
SERIES A PREFERRED - Section 3.3.
SERIES A PREFERRED STOCKHOLDERS - means the holders of Series A
Preferred.
SERIES B PREFERRED - Section 3.3.
SHAREHOLDERS' AGREEMENT - Section 7.2.
SHARES - The 153,256 shares of Common Stock sold to the Purchaser
described in Section 1.1 and any shares of Common Stock acquired by the
Purchaser pursuant to the Purchaser's right to buy additional shares described
in Section 7.1 hereof.
SUBSIDIARY shall mean any corporation, partnership, joint venture,
association or other business entity at least 50% of the outstanding voting
stock or voting interests of which is at the time owned or controlled, directly
or indirectly, by the Company or by one or more of such Subsidiary entities or
both.
TERMINATION DATE - Section 8.2.
QUALIFIED PUBLIC OFFERING - Section 7.2.
SECTION 10
MISCELLANEOUS
10.1. GOVERNING LAW.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware.
10.2. SURVIVAL.
The representations, warranties, covenants and agreements made herein
shall survive any investigation made by any Purchaser and shall survive the
Closing for the periods set
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forth in this Section 10.2. Except for the covenants under Section 8 which shall
survive until the Termination date, the covenants and agreements made herein and
all claims and causes of actions with respect thereto shall survive until the
Company's Initial Public Offering. The representations and warranties made
herein and all claims and causes of action with respect thereto shall terminate
upon the earlier to occur of (a) the two (2) year anniversary of the Closing
Date or (b) the one (1) year anniversary of the date the Company completes a
Initial Public Offering.
10.3. SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto; provided, however,
that the Company may not assign its rights hereunder. Without limiting the
generality of the foregoing, all representations, covenants and agreements
benefiting the Purchaser shall inure to the benefit of any and all subsequent
holders from time to time of the Shares.
10.4. ENTIRE AGREEMENT.
This Agreement and the Financing Documents (including the Exhibits
hereto, which are an integral part of this Agreement) and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
Except as otherwise expressly provided herein, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated, except by a
written instrument signed by the Company and Purchaser.
10.5. NOTICES, ETC.
(a) All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class, registered or
certified mail, postage prepaid, or delivered either by hand or by messenger, or
sent via telex, telecopier, computer mail or other electronic means, addressed
(a) if to the Purchaser, at the address set forth in the preamble of this
Agreement, or at such other address as such Purchaser shall have furnished to
the Company in writing, or (b) if to any other holder of any Shares at such
address as such holder shall have furnished to the Company in writing, or, until
any such holder so furnishes an address to the Company, then to and at the
address of the last holder thereof who has so furnished an address to the
Company, or (c) if to the Company, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: President or at such other address as the Company
shall have furnished to the Purchaser and each such other holder in writing.
(b) Any notice or other communications so addressed and mailed, postage
prepaid, by registered or certified mail (in each case, with return receipt
requested) shall be deemed to be given when so mailed. Any notice so addressed
and otherwise delivered shall be deemed to be given when actually received by
the addressee.
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10.6. DELAYS OR OMISSIONS.
No delay or omission to exercise any right, power or remedy accruing to
any of the parties hereto, upon any breach or default of any of the other
parties hereto under this Agreement, shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party hereto of any breach or default under this
Agreement, or any waiver on the part of any party hereto of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party hereto, shall be
cumulative and not alternative.
10.7. RIGHTS; SEPARABILITY.
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
10.8. AGENT'S FEES AND SERVICES.
(a) The Company represents and warrants that it has retained no finder
or broker or other person or firm in connection with the transactions
contemplated by this Agreement. The Company accepts sole responsibility for and
agrees to pay all agent's fees to and any broker, finder or other person or firm
in connection with the transactions contemplated herein, other than those which
a Purchaser has agreed to pay pursuant to Section 10.8(b). In addition, the
Company hereby agrees to indemnify and to hold the Purchaser harmless of and
from any liability for any commission or compensation in the nature of an
agent's fee to any broker, finder or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) arising from
any act by the Company or any of its employees or representatives.
(b) Purchaser represents and warrants that it has retained no finder or
broker in connection with the transactions contemplated by this Agreement.
Purchaser accepts sole responsibility for and agrees to pay all agent's fees to
any broker, finder or other person or firm hired by Purchaser in connection with
the transactions contemplated herein. In addition, Purchaser hereby agrees to
indemnify and to hold the Company harmless of and from any liability for any
commission or compensation in the nature of an agent's fee to any broker, finder
or other person or firm (and the costs and expenses of defending against such
liability or asserted liability) arising from any act by Purchaser or any of its
employees or representatives, other than those which the Company has agreed to
pay pursuant to Section 10.8(a).
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10.9. LEGAL FEES AND EXPENSES.
The Company shall bear its own expenses and legal fees incurred on its
behalf with respect to this Agreement and the transactions contemplated hereby.
The Purchaser shall bear its own expenses and legal fees incurred on its behalf
with respect to the Agreement and the transactions contemplated hereby.
10.10. TITLES AND SUBTITLES.
The titles of the Sections and subsections of this Agreement are for
convenience or reference only and are not to be considered in construing this
Agreement.
10.11. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall constitute a complete and original instrument but
all of which together shall constitute one and the same agreement, and it shall
not be necessary when making proof of this Agreement or any counterpart thereof
to account for any other counterpart.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
CELLOMICS, INC.
By: /s/ D. Lansing ▇▇▇▇▇▇
------------------------------
Name: D. Lansing ▇▇▇▇▇▇
----------------------------
Title: President & CEO
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name:
----------------------------
Title:
---------------------------
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EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
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EXHIBIT B
BYLAWS
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EXHIBIT C
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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