__________________
APPLIED IMAGING CORP.
STOCK PURCHASE AGREEMENT
____________, 1998
__________________
TABLE OF CONTENTS
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Page
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1. Purchase and Sale of Stock............................................ -1-
1.1 Closing......................................................... -1-
1.2 Delivery........................................................ -1-
2. Representations and Warranties of the Company......................... -1-
2.1 Organization and Standing....................................... -1-
2.2 Capitalization.................................................. -1-
2.3 Authority....................................................... -2-
2.4 Valid Issuance of Common Stock.................................. -2-
2.5 Governmental Consents........................................... -2-
2.6 Conflicts....................................................... -2-
2.7 SEC Documents; Material Contracts; Financial Statements......... -2-
2.8 Changes......................................................... -3-
2.9 Litigation...................................................... -3-
2.10 Solvency; No Default............................................ -3-
2.11 Disclosure...................................................... -3-
3. Representations and Warranties of the Investors....................... -4-
3.1 Authorization................................................... -4-
3.2 Purchase Entirely for Own Account............................... -4-
3.3 Disclosure of Information....................................... -4-
3.4 Investment Experience........................................... -4-
3.5 Accredited Investor............................................. -4-
3.6 Restricted Securities........................................... -4-
3.7 Further Limitations on Disposition.............................. -5-
3.8 Legends......................................................... -5-
4. Registration Rights................................................... -6-
4.1 Request for Registration........................................ -6-
4.2 Obligations of the Company...................................... -6-
4.3 Expenses of Registration........................................ -7-
4.4 Indemnification................................................. -8-
5. Conditions of Each Investor's Obligations at Closing.................. -10-
5.1 Representations and Warranties.................................. -10-
5.2 Performance..................................................... -10-
5.3 Qualifications.................................................. -10-
5.4 Proceedings and Documents....................................... -10-
6. Conditions of the Company's Obligations at Closing.................... -10-
6.1 Representations and Warranties.................................. -10-
6.2 Payment of Purchase Price....................................... -10-
6.3 Qualifications.................................................. -10-
7. Miscellaneous......................................................... -11-
7.1 Survival of Warranties.......................................... -11-
7.2 Assignment; Successors and Assigns.............................. -11-
7.3 Governing Law................................................... -11-
7.4 Counterparts.................................................... -11-
7.5 Titles and Subtitles............................................ -11-
7.6 Notices, etc.................................................... -11-
7.7 Finder's Fee.................................................... -12-
7.8 Expenses........................................................ -12-
7.9 Amendments and Waivers.......................................... -12-
7.10 Severability.................................................... -13-
7.11 Entire Agreement................................................ -▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the __th
day of _________, 1998, by and among Applied Imaging Corp., a Delaware
corporation (the "Company"), and the entities listed on Schedule A hereto
("Investors").
1. Purchase and Sale of Stock. Subject to the terms and conditions of
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this Agreement, Investors agree to purchase at the Closing (as hereinafter
defined) and the Company agrees to sell and issue to each of the Investors at
the Closing that number of whole shares of the Company's Common Stock as is
determined by dividing the investment amount set forth opposite each Investor's
name on Schedule A hereto (collectively, the "Shares"), by a purchase price per
share (the "Purchase Price") equal to the greater of (a) $3.00 or (b) the
closing price of the Company's Common Stock as reported on the Nasdaq National
Market System on the Closing Date.
1.1 Closing. Except as set forth on Exhibit A hereto, the purchase
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and sale of the Shares (the "Closing") shall be held at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on
___________, 1998 at 2:00 p.m., or at such other time and place upon which the
Company and Investors shall agree (which date and time shall be referred to as
the "Closing Date").
1.2 Delivery. Within three days of the Closing the Company shall
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issue to Investors certificates registered in the Investors' names, representing
the number of Shares purchased by the Investors against payment therefor. Such
payment shall be paid to the Company by check payable to the Company or by wire
transfer.
2. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Investors that, except as set forth in the
Schedule of Exceptions attached hereto as Exhibit B:
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2.1 Organization and Standing. The Company is a corporation duly
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organized and validly existing under the laws of the State of Delaware and is in
good standing under such laws. The Company has all requisite corporate power to
own and operate its properties and assets, and to carry on its business as
presently conducted. The Company is qualified to do business as a foreign
corporation in the State of California. Such qualification is not presently
required in any other jurisdiction where a failure to so qualify would have a
material adverse effect on the Company.
2.2 Capitalization. The authorized capital stock of the Company
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consists of 20,000,000 shares of Common Stock and 6,000,000 shares of Preferred
Stock. 11,016,236 shares of Common Stock are issued and outstanding. No shares
of Preferred Stock are issued and outstanding. All such issued and outstanding
shares have been duly authorized and validly issued, and are fully paid and
nonassessable. Options to purchase 1,149,316 shares of the Company's Common
Stock are outstanding under the Company's Amended and Restated 1988 Incentive
Stock Option Plan and 225,922 shares are available for future grant, and 950,000
shares are available for future grant under the Company's 1998 Stock Plan.
60,000 options to purchase shares of the Company's Common Stock are outstanding
under the Company's 1994 Director Option Plan and 60,000 shares are
available for future grant. The Company has reserved 200,000 shares of Common
Stock for issuance under its Employee Stock Purchase Plan. The Company also has
warrants outstanding for 681,744 shares of the Company's Common Stock. Except
as disclosed in the Company SEC Documents (as defined below), there are no other
options, warrants, conversion privileges, or preemptive or other rights or
agreements presently outstanding to purchase or otherwise acquire any authorized
but unissued shares of the capital stock or other securities of the Company.
2.3 Authority. The Company has full power and authority to execute
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and deliver this Agreement, and to consummate the transactions contemplated by
this Agreement. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the execution and delivery of, and the
consummation of the transactions contemplated by this Agreement and the
performance of all obligations of the Company under this Agreement has been
taken. This Agreement, upon execution and delivery by the Company and assuming
the due and proper execution and delivery by Investor, constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance with its
respective terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors rights generally, and (ii) the effect of
rules of law governing the availability of equitable remedies.
2.4 Valid Issuance of Common Stock. The Common Stock to be sold
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hereby has been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, will be duly authorized, validly issued,
fully paid and nonassessable, and will be free of restrictions on transfer other
than restrictions on transfer under this Agreement and under applicable state
and federal securities laws. No preemptive rights or other rights to subscribe
for or purchase exist with respect to the issuance and sale of the Common Stock
by the Company pursuant to this Agreement.
2.5 Governmental Consents. Other than compliance with the Securities
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Act of 1933, as amended (the "Act") and such filings as may be required to be
made with the National Association of Securities Dealers (the "NASD"), no
consent, approval, order or 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.
2.6 Conflicts. The execution and delivery of this Agreement will not
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conflict with or result in a material breach of the terms, conditions or
provisions of, or constitute a material default under, any contract, covenant or
instrument under which the Company is now obligated.
2.7 SEC Documents; Material Contracts; Financial Statements. The
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Company has filed each statement, annual, quarterly and other report,
registration statement and definitive proxy statement ("Company SEC Documents")
required to be filed (other than preliminary material) by the Company with the
SEC subsequent to November 7, 1996 (the date of effectiveness of the Company's
registration statement on Form S-1 for the Company's initial public offering of
its Common Stock). As of their respective filing dates, the Company SEC
Documents complied in all material respects with the requirements of the Act or
the Securities Exchange Act of 1934 (the "1934 Act"), as the
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case may be, and none of the Company SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading, except to the extent
corrected by any subsequently filed Company SEC Document. The Company's
Registration Statement on Form S-1, which became effective on November 7, 1996
(the "Registration Statement"), and the Company SEC Documents, include certain
contracts as required by the SEC's rules and regulations. The contracts so
described in the Registration Statement and in the Company SEC Documents, are
currently material to the Company and its business, and are in full force and
effect on the date hereof. Neither the Company nor any of its subsidiaries, nor
to the Company's knowledge, any other party is in breach of or default under any
of such contracts, except as to breaches or defaults which, in any single case
or in the aggregate would not have a material adverse effect on the Company
taken as a whole.
The financial statements of the Company included in the Company SEC
Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated financial position of
the Company and any subsidiaries at the dates thereof and the consolidated
results of operations and consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal, recurring
adjustments).
2.8 Changes. Since March 31, 1998 (the date of the most recent
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Financial Statements), there has not been any event or condition of any
character that might materially and adversely affect the business, properties,
prospects or financial condition of the Company (as such business is presently
conducted and as it is proposed to be conducted).
2.9 Litigation. There is no pending or threatened lawsuit,
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administrative proceeding, arbitration, labor dispute or governmental
investigation ("Litigation") to which the Company is a party or by which any
material portion of its assets, taken as a whole, may be bound and which
Litigation, if adversely determined, would have a material adverse effect on the
Company's assets, liabilities, financial condition or operations.
2.10 Solvency; No Default. As of the date of this Agreement, the
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company has sufficient funds and cash flow to pay its debts and other
liabilities, and the company is not in default with respect to any material debt
or liability.
2.11 Disclosure. The Company has fully delivered or made available
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to the Investors or their counsel all of the information (including the Company
SEC Documents) that the Company reasonably believes is necessary for such
Investors' purchase decision. Neither this Agreement nor any agreement,
instrument or other documents delivered by the Company to the Investors in
connection herewith or filed with the SEC subsequent to November 1996, when read
together, contains any untrue statement of a material fact, or, to the knowledge
of the Company, omits to state a material fact necessary to be stated, when read
together, to make the statements contained herein or therein not misleading in
light of the circumstances in which they were made.
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3. Representations and Warranties of the Investors. Each investor hereby
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represents and warrants that:
3.1 Authorization. Investor has full power and authority to execute
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and deliver, and to consummate the transactions contemplated by the Closing and
this Agreement. All corporate action on the part of such Investor, its
officers, directors and stockholders necessary for (i) the execution and
delivery of, and the consummation of the transactions contemplated by, this
Agreement, and (ii) as of the Closing, the performance of all obligations of
such Investor under this Agreement, has been taken. This Agreement, upon
execution and delivery by such Investor and assuming the due and proper
execution and delivery by the Company, constitutes a legal, valid and binding
obligation of such Investor, enforceable in accordance with its terms, except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors rights generally, and (ii) the effect of rules of law governing the
availability of equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made with
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each Investor in reliance upon each Investor's representation to the Company,
which by each Investor's execution of this Agreement, Investor hereby confirms,
that the Common Stock to be received by such Investor (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, each Investor further represents that Investor does not have any
contract, undertaking, agreement or arrangement 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. Investor believes it has received all
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the information it considers necessary or appropriate for deciding whether to
purchase the Common Stock. 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 Common 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 Investor to rely thereon.
3.4 Investment Experience. Investor is an investor in securities of
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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 Common Stock. Investor has not been
organized for the purpose of acquiring the Common Stock.
3.5 Accredited Investor. Investor is an "accredited investor" within
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the meaning of SEC Rule 501 of Regulation D, as presently in effect.
3.6 Restricted Securities. Investor understands that the Securities
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it is purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are
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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, 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 limiting
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the representations set forth above, 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 provided and to the extent this Section is 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) If reasonably requested by the Company, 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 agreed that the Company will not require opinions of counsel for
transactions made pursuant to Rule 144 except in unusual circumstances.
3.8 Legends. Each certificate or instrument representing Shares
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shall bear legends in substantially the following forms:
(i) "THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE 'SECURITIES ACT') AND ARE 'RESTRICTED SECURITIES' AS
DEFINED IN RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT, OR (II) IN COMPLIANCE WITH RULE 144, OR (III) PURSUANT TO AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES
THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SUCH
SALE, OFFER OR DISTRIBUTION."
(ii) Any other legends required by California law or
other applicable blue sky or state securities laws.
The Company need not register a transfer of any Shares, and may also instruct
its transfer agent not to register a transfer of any Shares, unless the
conditions specified in the foregoing legends are satisfied to the extent
applicable.
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4. Registration Rights.
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4.1 Request for Registration.
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(a) The Company shall prepare and file with the SEC as soon as
practicable but in no event later than 30 days after the date of the Closing, a
registration statement to register under the Act all Common Stock of the Company
acquired pursuant to this Agreement held by the Investors which each Investor
requests to be registered.
(b) If the Investor(s) intend to distribute the securities
covered by its request by means of an underwriting, the Investors shall so
advise the Company as a part of its request made pursuant to subsection (a)
above. The underwriter will be selected by the Company and shall be reasonably
acceptable to each Investor. Each Investor shall (together with the Company)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to each Investor a certificate signed by the Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such registration statement to be filed, and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer taking action with respect to such filing for a period
of not more than 60 days after receipt of the request of the Investors;
provided, however, that the Company may not utilize this right more than once in
any twelve-month period.
(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 4.1:
(i) After the Company has effected two registrations
pursuant to this Agreement, and such registrations have been declared or ordered
effective;
(ii) If, as to each Investor, all securities which each
such Investor requests to be registered may immediately be sold under Rule 144
during any 90-day period; or
(iii) More than once in any 12-month period.
4.2 Obligations of the Company. Whenever required under this
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Section 4 to effect the registration of any securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such securities and use commercially reasonable efforts to cause
such registration statement to become effective, and, keep such registration
statement effective for a period of up to two years, or such lesser period of
time as all of the Shares have been sold or can be sold without restriction
under Rule 144.
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(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to each Investor such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of securities.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by each
Investor; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions,
unless the Company is already subject to service in such jurisdiction and except
as may be required by the Act.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering, said form to be
agreeable to the Company and its counsel. Each Investor shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Investor at any time when a prospectus
relating to such registration statement is required to be delivered under the
Act of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing.
(g) Cause all such securities registered pursuant hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed.
(h) Furnish, at the request of each Investor, on the date that
securities are delivered to the underwriters for sale in connection with a
registration pursuant to this Section 4, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to each Investor and (ii) a
letter dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to Investor.
4.3 Expenses of Registration. All expenses, other than
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underwriting discounts and commissions incurred in connection with the requests
for registration pursuant to Section 4.1, and the fees and disbursements of
counsel to the Investors, including (without limitation) all
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registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company shall be borne by the Company,
provided, however, that with respect to any registration proceeding begun
pursuant to Section 4.1 if the registration request is subsequently withdrawn at
the request of the Investors participating therein then such withdrawn
registration shall reduce the number of available requested registrations for
the Investors.
4.4 Indemnification. In the event any securities are included
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in a registration statement under this Section 4:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Investor and each person, if any, who controls such
Investor within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act or the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the 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 (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, or the 1934 Act or any state
securities law; and the Company will pay to each Investor or controlling person,
as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 4.4(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any Investor or controlling person.
(b) To the extent permitted by law, each Investor will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, and any
controlling person of any such underwriter or Investor, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, or the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by each Investor
expressly for use in connection with such registration; and each Investor will
pay, as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 4.4(b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 4.4(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
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the consent of such Investor, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 4.4(b)
exceed the gross proceeds from the offering received by such Investor.
(c) Promptly after receipt by an indemnified party under this
Section 4.4 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 4.4, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
4.4, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 4.4.
(d) If the indemnification provided for in this Section 4.4 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Investor under this
Section 4.4 shall survive the completion of any offering of securities in a
registration statement under this Section 5, and otherwise.
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5. Conditions of Each Investor's Obligations at Closing. The obligations
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of each Investor under subsection 1.2 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 without each Investor's consent thereto:
5.1 Representations and Warranties. The representations and
------------------------------
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.
5.2 Performance. The Company shall have performed and 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.
5.3 Qualifications. 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 Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
5.4 Proceedings and Documents. All corporate and other
-------------------------
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Investor, and it shall have received all such counterpart original
and certified or other copies of such documents as it may reasonably request.
5.5 Opinion of Company Counsel. The Investors shall have
--------------------------
received an opinion from counsel to the Company in form and substance reasonably
satisfactory to the Investors and attached hereto as Exhibit C.
6. Conditions of the Company's Obligations at Closing. The 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 each
Investor:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of Investor 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.
6.2 Payment of Purchase Price. Each Investor shall have
-------------------------
delivered the purchase price specified in Section 1.
6.3 Qualifications. 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 Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.
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7. Miscellaneous.
-------------
7.1 Survival of Warranties. The warranties, representations
----------------------
and covenants of the Company and Investor 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 Investor or the Company.
7.2 Assignment; Successors and Assigns. No provision of this
----------------------------------
Agreement may be assigned (other than to an affiliate of any Investor), without
the prior written consent of the other parties hereto. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective 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.
7.3 Governing Law. This Agreement shall be governed by and
-------------
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.
7.4 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.
7.5 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.
7.6 Notices, etc. All notices and other communications
-------------
required or permitted hereunder shall be in writing and shall be sent by
personal delivery, facsimile, overnight courier or mailed by certified or
registered mail, postage prepaid, return receipt requested, to the facsimile
number or address as follows:
Company: Applied Imaging Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
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with a copy (which will not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Investors: To the facsimile number or address for each respective
investor set forth in Schedule A hereto.
----------
with a copy (which will not constitute notice) to:
Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or to such other facsimile number or address provided to the parties to this
Agreement in accordance with this Section 7.6. Such notices or other
communications shall be deemed delivered upon receipt, in the case of overnight
delivery, personal delivery or facsimile transmission (as evidenced by the
confirmation thereof), or 2 days after deposit in the mails (as determined by
reference to the postmark).
7.7 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.
7.8 Expenses. Irrespective of whether the Closing is effected,
--------
each party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement, except that
the Company will pay the reasonable fees (in an amount not to exceed $5,000) and
expenses of Venture Law Group, counsel to the Investors. If any action at law
or in equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
7.9 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 Company and Investor. 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.
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7.10 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.
7.11 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
APPLIED IMAGING CORP.
By:__________________________
Title:_______________________
INVESTORS:
_____________________________
_____________________________
_____________________________
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