Exhibit 10.13
AZURE DIAGNOSTICS, INC.
SERIES A PREFERRED
STOCK PURCHASE AGREEMENT
September 15, 1998
TABLE OF CONTENTS
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Page
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1. Purchase and Sale of Stock............................................ 1
1.1 Sale and Issuance of Series A Preferred Stock................... 1
1.2 Closing......................................................... 1
1.3 Subsequent Sale of Series A Preferred Stock..................... 1
2. Representations and Warranties of the Company......................... 2
2.1 Organization, Good Standing and Qualification................... 2
2.2 Capitalization and Voting Rights................................ 2
2.3 Subsidiaries.................................................... 3
2.4 Authorization................................................... 3
2.5 Valid Issuance of Preferred and Common Stock.................... 3
2.6 Governmental Consents........................................... 3
2.7 Offering........................................................ 3
2.8 Litigation...................................................... 4
2.9 Proprietary Information and Employee Stock Purchase Agreements.. 4
2.10 Patents and Trademarks......................................... 4
2.11 Compliance with Other Instruments.............................. 5
2.12 Agreements; Action............................................. 5
2.13 Permits........................................................ 6
2.14 Registration Rights............................................ 6
2.15 Corporate Documents............................................ 6
2.16 Title to Property and Assets................................... 6
3. Representations and Warranties of the Investors....................... 6
3.1 Authorization................................................... 6
3.2 Purchase Entirely for Own Account............................... 6
3.3 Disclosure of Information....................................... 7
3.4 Investment Experience........................................... 7
3.5 Accredited Investor............................................. 7
3.6 Restricted Securities........................................... 7
3.7 Further Limitations on Disposition.............................. 7
3.8 Legends......................................................... 8
4. Conditions of Investors' Obligations at Closing....................... 8
4.1 Representations and Warranties.................................. 8
4.2 Performance..................................................... 8
4.3 Compliance Certificate.......................................... 8
4.4 Qualifications.................................................. 8
4.5 Proceedings and Documents....................................... 9
4.6 Board of Directors.............................................. 9
4.7 Opinion of Company Counsel...................................... 9
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4.8 Investors' Rights Agreement..................................... 9
5. Conditions of the Company's Obligations at Closing.................... 9
5.1 Representations and Warranties.................................. 9
5.2 Payment of Purchase Price....................................... 9
5.3 Qualifications.................................................. 9
6. Miscellaneous......................................................... 9
6.1 Survival of Warranties.......................................... 9
6.2 Successors and Assigns.......................................... 9
6.3 Governing Law................................................... 10
6.4 Counterparts.................................................... 10
6.5 Titles and Subtitles............................................ 10
6.6 Notices......................................................... 10
6.7 Finder's Fee.................................................... 10
6.8 Expenses........................................................ 10
6.9 Amendments and Waivers.......................................... 10
6.10 Severability................................................... 11
6.11 Corporate Securities Law....................................... 11
6.12 Aggregation of Stock........................................... 11
6.13 Entire Agreement............................................... 11
6.14 Waiver of Conflicts............................................ 11
SCHEDULE A Schedule of Investors
SCHEDULE B Schedule of Exceptions
EXHIBIT A Restated Certificate of Incorporation
EXHIBIT B Investors' Rights Agreement
EXHIBIT C Opinion of Counsel for the Company
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AZURE DIAGNOSTICS, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 15th day of
September, 1998, by and among Azure Diagnostics, Inc., a Delaware corporation
(the "Company"), and the investors listed on Schedule A hereto, each of which is
herein referred to as an "Investor."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Series A Preferred Stock .
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(a) The Company shall adopt and file with the Secretary
of State of Delaware on or before the Closing (as defined below) the Restated
Certificate of Incorporation in the form attached hereto as Exhibit A (the
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"Restated Certificate").
(b) On or prior to the Initial Closing (as defined
below), the Company shall have authorized (i) the sale and issuance to the
Investors of the Series A Preferred Stock and (ii) the issuance of the shares of
Common Stock to be issued upon conversion of the Series A Preferred Stock (the
"Conversion Shares"). The Series A Preferred Stock and the Conversion Shares
shall have the rights, preferences, privileges and restrictions set forth in the
Restated Certificate.
(c) Subject to the terms and conditions of this
Agreement, each Investor agrees, severally and not jointly, to purchase at the
Initial Closing or pursuant to Section 1.3, and the Company agrees to sell and
issue to each Investor at the Initial Closing or pursuant to Section 1.3, that
number of shares of the Company's Series A Preferred Stock set forth opposite
such Investor's name on Schedule A hereto for the purchase price set forth
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thereon
1.2 Closing. The purchase and sale of the Series A Preferred
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Stock shall take place at the offices of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at
2:00 P.M., September____, 1998 or at such other time and place as the Company
and Investors acquiring in the aggregate more than half the shares of Series A
Preferred Stock sold pursuant hereto mutually agree upon orally or in writing
(which time and place are designated as the "Closing"). At the Closing the
Company shall deliver to each Investor a certificate representing the Series A
Preferred Stock that such Investor is purchasing against payment of the purchase
price therefor by check, wire transfer, cancellation of indebtedness, or any
combination thereof.
1.3 Subsequent Sale of Series A Preferred Stock . The Company
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may sell up to the balance of the authorized number of shares of Series A
Preferred Stock not sold at the
Closing to such purchasers as it shall select, at a price not less than $1.00
per share, provided the agreement for sale is executed not later than September
30, 1998. Any such purchaser shall become a party to this Agreement, and that
certain Investors' Rights Agreement of even date herewith by and among the
Company and the Investors, the form of which is attached as Exhibit B (the
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"Investors' Rights Agreement"), and shall have the rights and obligations
hereunder and thereunder, unless such purchaser enters into an acquisition
agreement that provides otherwise.
2. Representations and Warranties of the Company. The
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Company hereby represents and warrants to each Investor that, except as set
forth on the Schedule of Exceptions (the "Schedule of Exceptions") furnished to
each Investor which exceptions shall be deemed to be representations and
warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The
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Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as now conducted and as proposed to be
conducted. Except for qualification in the State of California, the Company is
duly qualified to transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a material adverse effect on its
business or properties. The Company is in the process of qualifying to do
business in California.
2.2 Capitalization and Voting Rights. The authorized capital
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of the Company consists of:
(a) Preferred Stock. Seven million (7,000,000) shares of
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Preferred Stock, par value $0.0001 (the "Preferred Stock"), of which seven
million (7,000,000) shares have been designated Series A Preferred Stock (the
"Series A Preferred Stock"). The rights, privileges and preferences of the
Series A Preferred Stock will be as stated in the Company's Restated
Certificate.
(b) Common Stock. Twenty million (20,000,000) shares of
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common stock, par value $0.0001 ("Common Stock"), of which two million one
hundred seventy-five thousand (2,175,000) shares are issued and outstanding.
(c) Except for (A) the conversion privileges of the
Series A Preferred Stock to be issued under this Agreement and (B) the rights
provided in Section 2.4 of the Investors' Rights Agreement, there are not
outstanding any options, warrants, rights (including conversion or preemptive
rights) or agreements for the purchase or acquisition from the Company of any
shares of its capital stock. In addition, the Company has reserved two million
four hundred thirty-two thousand (2,432,000) shares of its Common Stock for
purchase upon exercise of options to be granted in the future to the Company's
service providers. The Company is not a party or subject to any agreement or
understanding, and, to the best of the Company's knowledge, there is no
agreement or understanding between any persons and/or entities, which affects or
relates to the voting or giving of written consents with respect to any security
or by a director of the Company.
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2.3 Subsidiaries. The Company does not presently own or
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control, directly or indirectly, any interest in any other corporation,
association, or other business entity. The Company is not a participant in any
joint venture, partnership, or similar arrangement.
2.4 Authorization. All corporate action on the part of the
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Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, and the Investors'
Rights Agreement, the performance of all obligations of the Company hereunder
and thereunder, and the authorization, issuance (or reservation for issuance),
sale and delivery of the Series A Preferred Stock being sold hereunder and the
Common Stock issuable upon conversion of the Series A Preferred Stock has been
taken or will be taken prior to the Closing, and this Agreement and the
Investors' Rights Agreement constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
2.5 Valid Issuance of Preferred and Common Stock. The Series
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A Preferred Stock that is being purchased by the Investors hereunder, when
issued, sold and delivered in accordance with the terms of this Agreement for
the consideration expressed herein, will be duly and validly issued, fully paid,
and nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement, and the Investors' Rights
Agreement under applicable state and federal securities laws. The Common Stock
issuable upon conversion of the Series A Preferred Stock purchased under this
Agreement has been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Restated Certificate, will be duly and validly
issued, fully paid, and nonassessable and will be free of restrictions on
transfer other than restrictions on transfer under this Agreement, and the
Investors' Rights Agreement under applicable state and federal securities laws.
2.6 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except (i) the filing of the Restated
Certificate with the Secretary of State of Delaware; and (ii) the filing
pursuant to Section 25102(f) of the California Corporate Securities Law of 1968,
as amended, and the rules thereunder, which filing will be effected within 15
days of the sale of the Series A Preferred Stock hereunder, or such other post-
closing filings as may be required.
2.7 Offering. Subject in part to the truth and accuracy of
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each Investor's representations set forth in Section 3 of this Agreement, the
offer, sale and issuance of the Series A Preferred Stock as contemplated by this
Agreement are exempt from the registration requirements of any applicable state
and federal securities laws, and neither the Company nor any authorized agent
acting on its behalf will take any action hereafter that would cause the loss of
such exemption.
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2.8 Litigation. There is no action, suit, proceeding or
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pending or, to the Company's knowledge, currently threatened against the Company
that questions the validity of this Agreement, and the Investors' Rights
Agreement, or the right of the Company to enter into such agreements, or to
consummate the transactions contemplated hereby or thereby, or that might
result, either individually or in the aggregate, in any material adverse changes
in the assets, condition, affairs or prospects of the Company, financially or
otherwise, or any change in the current equity ownership of the Company. The
foregoing includes, without limitation, actions, suits, proceedings or
investigations pending or threatened involving the prior employment of any of
the Company's employees, their use in connection with the Company's business of
any information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. 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. There is no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends to initiate.
2.9 Proprietary Information and Employee Stock Purchase
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Agreements. Each employee, officer and consultant of the Company has executed a
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Proprietary Information and Inventions Agreement in substantially the form
provided to the Investors. The Company is not aware that any of its employees,
officers or consultants are in violation thereof, and the Company will use
reasonable efforts to prevent any such violation.
2.10 Patents and Trademarks. To its knowledge (but without
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having conducted any special investigation or patent or trademark search), the
Company has sufficient title and ownership of or licenses to all patents,
trademarks, service marks, trade names, copyrights, trade secrets, information,
proprietary rights and processes necessary for its business as now conducted and
as proposed to be conducted without any conflict with or infringement of the
rights of others, except for such items as have yet to be conceived or developed
or that are expected to be available for licensing on reasonable terms from
third parties. There are no outstanding options, licenses, or agreements of any
kind relating to the foregoing, nor is the Company bound by or a party to any
options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity,
except, in either case, for end-user, object code, internal-use software license
and support/maintenance agreements. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, copyrights or trade secrets or other proprietary rights of
any other person or entity. The Company is not aware that any of its employees
is obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of his or
her best efforts to promote the interests of the Company or that would conflict
with the Company's business as proposed to be conducted. Neither the execution
nor delivery of this Agreement, or the Investors' Rights Agreement, nor the
carrying on of the Company's business by the employees of the Company, nor the
conduct of the Company's business as proposed, will, to the Company's knowledge,
conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any contract, covenant or instrument under which
any of such
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employees is now obligated. The Company does not believe it is or will be
necessary to utilize any inventions of any of its employees (or people it
currently intends to hire) made prior to or outside the scope of their
employment by the Company.
2.11 Compliance with Other Instruments. The Company is not in
---------------------------------
violation or default in any material respect of any provision of its Restated
Certificate or Bylaws, or in any material respect of any instrument, judgment,
order, writ, decree or contract to which it is a party or by which it is bound,
or, to its knowledge, of any provision of any federal or state statute, rule or
regulation applicable to the Company. The execution, delivery and performance of
this Agreement, and the Investors' Rights Agreement, and the consummation of the
transactions contemplated hereby and thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event that results
in the creation of any lien, charge or encumbrance upon any assets of the
Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of
any material permit, license, authorization, or approval applicable to the
Company, its business or operations or any of its assets or properties.
2.12 Agreements; Action.
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(a) Except for agreements explicitly contemplated hereby
and by the Investors' Rights Agreement, there are no agreements, understandings
or proposed transactions between the Company and any of its officers, directors,
affiliates, or any affiliate thereof.
(b) There are no agreements, understandings,
instruments, contracts, proposed transactions, judgments, orders, writs or
decrees to which the Company is a party or by which it is bound that may involve
(i) obligations (contingent or otherwise) of, or payments to the Company in
excess of, $10,000, or (ii) the license of any patent, copyright, trade secret
or other proprietary right to or from the Company (other than the license of the
Company's software and products in the ordinary course of business), or (iii)
provisions restricting or affecting the development, manufacture or distribution
of the Company's products or services.
(c) The Company has not (i) declared or paid any
dividends or authorized or made any distribution upon or with respect to any
class or series of its capital stock, (ii) incurred any indebtedness for money
borrowed or any other liabilities individually in excess of $10,000 or, in the
case of indebtedness and/or liabilities individually less than $10,000, in
excess of $25,000 in the aggregate, (iii) made any loans or advances to any
person, other than ordinary advances for travel expenses, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights, other than the
sale of its inventory in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above,
all indebtedness, liabilities, agreements, understandings, instruments,
contracts and proposed transactions involving the same person or entity
(including persons or entities the Company has reason to believe are affiliated
therewith) shall be aggregated for the purpose of meeting the individual minimum
dollar amounts of such subsections.
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2.13 Permits. The Company has all franchises, permits,
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licenses, and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, prospects, or financial condition of the
Company, and the Company believes it can obtain, without undue burden or
expense, any similar authority for the conduct of its business as planned to be
conducted. The Company is not in default in any material respect under any of
such franchises, permits, licenses, or other similar authority.
2.14 Registration Rights. Except as provided in the Investors'
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Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.15 Corporate Documents. Except for amendments necessary to
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satisfy representations and warranties or conditions contained herein (the form
of which amendments has been approved by the Investors), the Restated
Certificate and Bylaws of the Company are in the form previously provided to the
Investors.
2.16 Title to Property and Assets. The Company owns its
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property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens that arise in the ordinary
course of business and do not materially impair the Company's ownership or use
of such property or assets. With respect to the property and assets it leases,
the Company is in compliance with all material terms of such leases and, to the
best of its knowledge, holds a valid leasehold interest free of any liens,
claims or encumbrances.
3. Representations and Warranties of the Investors. Each
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Investor hereby represents and warrants that:
3.1 Authorization. Such Investor has full power and authority
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to enter into this Agreement, and the Investors' Rights, and each such Agreement
constitutes its valid and legally binding obligation, enforceable in accordance
with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent the indemnification provisions contained in
the Investors' Rights Agreement may be limited by applicable federal or state
securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made
---------------------------------
with such Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that the Series A Preferred Stock to be received by such
Investor and the Common Stock issuable upon conversion thereof (collectively,
the "Securities") will be acquired for investment for such Investor's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that such Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, such Investor further represents that
such Investor does not have any contract, undertaking, agreement or arrangement
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with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Securities.
3.3 Disclosure of Information. Such Investor believes it has
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received all the information it considers necessary or appropriate for deciding
whether to purchase the Series A Preferred Stock. Such Investor further
represents that it has had an opportunity to ask questions and receive answers
from the Company regarding the terms and conditions of the offering of the
Series A Preferred Stock and the business, properties, prospects and financial
condition of the Company. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement or
the right of the Investors to rely thereon .
3.4 Investment Experience. Such Investor is an investor in
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securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Series A
Preferred Stock. If other than an individual, Investor also represents it has
not been organized for the purpose of acquiring the Series A Preferred Stock.
3.5 Accredited Investor. Such Investor is an "accredited
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investor" within the meaning of Securities and Exchange Commission ("SEC") Rule
501 of Regulation D, as presently in effect.
3.6 Restricted Securities. Such Investor understands that the
---------------------
Securities 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 Act, only in certain limited circumstances. In this connection, such
Investor represents that it is familiar with SEC Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
3.7 Further Limitations on Disposition. Without in any way
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limiting the representations set forth above, such Investor further agrees not
to make any disposition of all or any portion of the Securities unless and until
the transferee has agreed in writing for the benefit of the Company to be bound
by this Section 3 and the Investors' Rights Agreement provided and to the extent
this Section and such agreements are then applicable, and :
(a) There is then in effect a Registration Statement
under the Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company that
such disposition will not require registration of such shares under the Act. It
is
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agreed that the Company will not require opinions of counsel for transactions
made pursuant to Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of Paragraphs (a) and
(b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor that is a partnership to a partner of
such partnership or a retired partner of such partnership who retires after the
date hereof, or to the estate of any such partner or retired partner or the
transfer by gift, will or intestate succession of any partner to his or her
spouse or to the siblings, lineal descendants or ancestors of such partner or
his or her spouse, if the transferee agrees in writing to be subject to the
terms hereof to the same extent as if he or she were an original Investor
hereunder.
3.8 Legends. It is understood that the certificates
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evidencing the Securities may bear one or all of the following legends:
"These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in effect
with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
"The shares represented by this Certificate are subject to a
right of first refusal option in favor of the Company, as provided by the Bylaws
of the Company. Copies of the Company's Bylaws may be obtained upon written
request to the Secretary of the Company."
4. Conditions of Investors' Obligations at Closing. The
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obligations of each Investor under subsection 1.1(c) of this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions, the waiver of which shall not be effective against any Investor who
does not consent thereto:
4.1 Representations and Warranties. The representations and
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warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
4.2 Performance. The Company shall have performed and
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complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
4.3 Compliance Certificate. The President of the Company
----------------------
shall deliver to each Investor at the Closing a certificate stating that the
conditions specified in Sections 4.1 and 4.2 have been fulfilled and stating
that there shall have been no material adverse change in the business, affairs,
operations, properties, assets or condition of the Company since the date of the
incorporation.
4.4 Qualifications. All authorizations, approvals, or
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permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in
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connection with the lawful issuance and sale of the Securities pursuant to this
Agreement shall be duly obtained and effective as of the Closing.
4.5 Proceedings and Documents. All corporate and other
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proceedings inconnection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Investors' special counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
4.6 Board of Directors. The authorized number of directors of
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the Company shall be six (6). The initial directors of the Company shall be
Messrs. ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ and there shall be three (3) vacancies on the
Board of Directors.
4.7 Opinion of Company Counsel. Each Investor shall have
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received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
("▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), counsel for the Company, an opinion, dated as of the
Closing, in the form attached hereto as Exhibit C.
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4.8 Investors' Rights Agreement. The Company and each
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Investor shall have entered into the Investors' Rights Agreement in the form
attached as Exhibit B.
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5. Conditions of the Company's Obligations at Closing. The
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obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions by
that Investor:
5.1 Representations and Warranties. The representations and
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warranties of the Investors contained in Section 3 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the Closing.
5.2 Payment of Purchase Price. The Investor shall have
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delivered the purchase price specified in Section 1.1(c).
5.3 Qualifications. All authorizations, approvals, or
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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 Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
6. Miscellaneous.
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6.1 Survival of Warranties. The warranties, representations
----------------------
and covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
6.2 Successors and Assigns. Except as otherwise provided
----------------------
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective
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successors and assigns of the parties (including transferees of any Securities).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
6.3 Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
6.4 Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 Titles and Subtitles. The titles and subtitles used in
--------------------
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 Notices. Unless otherwise provided, any notice required
-------
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
6.7 Finder's Fee. Each party represents that it neither is
------------
nor will be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Investor or any of its officers, partners,
employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless each
Investor from any liability for any commission or compensation in the nature of
a finders' fee (and the costs and expenses of defending against such liability
or asserted liability) for which the Company or any of its officers, employees
or representatives is responsible.
6.8 Expenses. Irrespective of whether the Closing is
--------
effected, the Company shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the Investors' Rights Agreement, or the
Restated Certificate, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
6.9 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the
10
Company and the holders of a majority of the Common Stock issuable or issued
upon conversion of the Series A Preferred Stock. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
6.10 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.11 Corporate Securities Law. THE SALE OF THE SECURITIES THAT ARE
------------------------
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
6.12 Aggregation of Stock. All shares of the Preferred Stock held or
--------------------
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
6.13 Entire Agreement. This Agreement and the documents referred to
----------------
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
6.14 Waiver of Conflicts. Each party to this Agreement acknowledges
-------------------
that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel for the Company, has in the past and may
continue to perform legal services for certain of the Investors in matters
unrelated to the transactions described in this Agreement, including the
representation of such Investors in venture capital financings and other
matters. Accordingly, each party to this Agreement hereby (1) acknowledges that
they have had an opportunity to ask for information relevant to this disclosure;
(2) acknowledges that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ represented the Company in the
transaction contemplated by this Agreement and has not represented any
individual Investor or any individual shareholder or employee of the Company in
connection with such transaction; and (3) gives its informed consent to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ representation of certain of the Investors in such unrelated
matters and to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ representation of the Company in connection
with this Agreement and the transactions contemplated hereby.
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY
AZURE DIAGNOSTICS, INC.
By: __________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Address: ______________________________
______________________________
Facsimile: ______________________________
Signature Page
Series A Preferred Stock Purchase Agreement
Schedule A
----------
Schedule of Investors
---------------------
Number of Total Purchase
Name and Address Shares Purchased Price of Shares
---------------- ---------------- ---------------
TOTAL 5,050,000 $5,050,000
S-1
Schedule B
----------
Schedule of Exceptions
----------------------
S-2
Exhibit A
---------
Restated Certificate of Incorporation
-------------------------------------
E-1
Exhibit B
---------
Investors' Rights Agreement
---------------------------
E-2
Exhibit C
---------
Opinion of Counsel for the Company
----------------------------------
E-3