Exhibit 10.1
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (the "Agreement"), dated as of February 20, 2004,
between Robotic Vision Systems, Inc., a Delaware corporation (the "Company"),
and SF Capital Partners Ltd., a British Virgin Islands company (the
"Subscriber").
The Company is offering for sale to the Subscriber, on the terms and
conditions set forth below, 666,667 shares (the "Shares") of the common stock of
the Company (the "Common Stock") at a price of $3.00 per share, or an aggregate
price of $2,000,000 (the "Offering Price"), and a six-month warrant (the
"Warrant") to acquire up to an additional 645,161 shares (the "Additional
Shares") of Common Stock at a price of $3.10 per share or an aggregate price of
$2,000,000.
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereby agree as follows:
I. SUBSCRIPTION FOR SHARES; REPRESENTATIONS BY SUBSCRIBER
1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby subscribes for and agrees to purchase from the Company, and
the Company agrees to issue and sell to the Subscriber, at the Offering Price,
the Shares and the Warrant. The closing of the purchase of the Shares shall
occur on the date hereof, or such later date as shall be agreed to by the
parties (the "Closing Date"). On the Closing Date, the Subscriber shall pay the
Offering Price by wire transfer to the Company in accordance with instructions
to be given by the Company to the Subscriber on or before the Closing Date, and
the Company shall cause its counsel to deliver a legal opinion letter in form
and substance reasonably acceptable to the Subscriber. The Warrant (in
substantially the form attached hereto as Exhibit A) and certificates evidencing
the Shares will be issued to the Subscriber as soon as practicable after receipt
and collection by the Company of payment for the Shares.
1.2 The Subscriber recognizes that the purchase of the Shares and the
Warrant entails elements of risk in that (i) it may not be able to readily
liquidate its investment; (ii) transferability is restricted; and (iii) in the
event of a disposition, it could sustain the loss of its entire investment.
1.3 The Subscriber acknowledges that it is an "Accredited Investor" as such
term is defined in Regulation D under the Securities Act of 1933, as amended
(the "Act"), that it has prior investment experience such that it is able to
evaluate the merits and risks of an investment in the Company, or that it has
employed the services of an investment advisor to read the Disclosure Documents
(as hereinafter defined) and to evaluate the merits and risks of such an
investment on its behalf; that it recognizes the speculative nature of this
investment; and that it is able to bear the economic risk it hereby assumes. The
Company's (i) Annual Report on Form 10-K for the year ended September 30, 2003,
as filed with the U.S. Securities and Exchange Commission ("SEC"), and (ii) any
other reports filed by the Company with the SEC pursuant to the Securities
Exchange Act of 1934 between January 13, 2004 and the date of this Agreement,
are collectively referred to as the "Disclosure Documents." The Subscriber
acknowledges that it or its representative(s) have read the Disclosure
Documents. The Subscriber also acknowledges that it and its representative(s)
have been afforded the opportunity to make, and has made, all
inquiries as it and its representatives deemed appropriate with respect to the
Company's affairs and prospects.
1.4 The Subscriber hereby acknowledges that the Offering has not been
reviewed by the SEC because of the Company's representation that it is intended
to be a non-public offering pursuant to Section 4(2) of the Act. The Subscriber
represents that the Shares are being purchased for its own account, for
investment and not for public distribution. The Subscriber understands that the
Shares, upon their issuance, will not be registered under the Act and may be
required to be held indefinitely unless they are subsequently registered under
the Act pursuant to Article III hereof, or an exemption from such registration
is available.
1.5 The Subscriber acknowledges that the certificate representing the
Shares shall bear a legend in substantially the following form:
"This security has not been registered under the Securities Act
of 1933, as amended (the "Securities Act"). The holder hereof, by
purchasing this security, agrees for the benefit of Robotic
Vision Systems, Inc. that this security may be resold, pledged or
otherwise transferred only pursuant to an effective registration
statement under the Securities Act or exemption therefrom, in
each case in accordance with any applicable securities laws of
any state of the United States. This security may be pledged, but
not transferred in violation of the foregoing, in connection with
a bona fide margin account or other loan secured by such
securities."
II. REPRESENTATION AND WARRANTIES BY THE COMPANY
The Company represents and warrants to the Subscriber as follows:
2.1 The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Company has the
corporate power and authority to own, lease and operate its properties and to
conduct the business which it presently conducts. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except for such
jurisdictions where the failure to be so qualified or in good standing would not
have a material adverse effect on the condition, financial or otherwise, or on
the results of operations, business affairs or business prospects of the
Company.
2.2 The execution, delivery and performance of this Agreement by the
Company (a) has been duly authorized and approved by the Board of Directors of
the Company and all other necessary corporate action on the part of the Company
in connection therewith has been taken and (b) will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to (i) the charter documents or by-laws of the Company, (ii)
any material contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may be
bound or to which any of its properties may
be subject or (iii) any law, administrative regulation or court decree
applicable to or binding upon the Company. This Agreement has been duly and
validly executed and delivered by the Company and constitutes the legal, valid
and binding agreement of the Company, enforceable in accordance with its terms,
except that (i) any enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect and
affecting the rights of creditors generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought.
2.3 The Shares shall, upon the consummation of the transactions
contemplated hereby and the payment of the purchase price therefore, be duly and
validly authorized and issued, fully paid and non-assessable and not subject to
any preemptive rights. On or before the Closing date, the Company shall have
reserved from its duly authorized capital stock the maximum number of shares of
Common Stock necessary in order to issue the Shares and the Additional Shares.
2.4 The Disclosure Documents are true, correct and complete in all material
respects, and do not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2.5 Since the respective dates as of which information was given in the
Disclosure Documents, except as otherwise stated therein: (i) there has been no
material adverse change in the financial condition, or in the results of
operations, affairs or prospects of the Company, whether or not arising in the
ordinary course of business; and (ii) there have been no transactions entered
into by the Company, other than those in the ordinary course of business, which
are material to the Company.
2.6 The Company is not, and is not an affiliate of, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended. The
Company confirms that neither it, nor to its knowledge, any other person acting
on its behalf has provided the Subscriber with any information that the Company
believes constitutes material, non-public information, except for such
information as will be included within the press release described in Section
2.7 hereof. The Company understands and confirms that the Subscriber will rely
on the foregoing representations and covenants in effecting transactions in
securities of the Company.
2.7 By 8:30 a.m. (New York City time) on the first business day following
the Closing Date, the Company shall issue a press release reasonably acceptable
to the Subscriber disclosing the transactions contemplated hereby and file a
Current Report on Form 8-K disclosing the material terms of the transactions
contemplated hereby. In addition, the Company will make such other filings and
notices in the manner and time required by the SEC.
III. REGISTRATION RIGHTS
3.1 The Company shall include the Shares and the Additional Shares in the
next registration statement on Form S-1 or Form S-3 (or other similar form) that
the Company files with the SEC (the "Registration Statement"), so as to permit
the resale of the Shares and the Additional Shares (collectively the
"Registrable Securities") in compliance with federal securities laws. The
Company covenants and agrees that it shall use its best efforts to file the
Registration Statement promptly after the Closing Date and to cause the
Registration Statement to become effective within 120 days after the Closing
Date. The Company shall use its best efforts to keep the Registration Statement
continuously effective for the period beginning on the date on which the
Registration Statement is declared effective and ending on the date that all of
the Registrable Securities have been sold or are eligible for resale without
registration pursuant to Rule 144 under the Act.
3.2 Certificates evidencing the Shares and Additional Shares shall not
contain any legend (including the legend set forth in Section 1.5): (i)
following any sale of such shares pursuant to the Registration Statement, or
(ii) following any sale of such shares pursuant to Rule 144, or (iii) while such
shares are eligible for sale under Rule 144(k), or (iv) if such legend is not
required under applicable requirements of the Securities Act. The Company shall
cause its counsel to issue any legal opinion or instruction required by the
Company's transfer agent to comply with the requirements set forth in this
Section. At such time as a legend is no longer required for the Shares and
Additional Shares under this Section 3.2, the Company will, as soon as
reasonably practicable following the delivery by the Subscriber to the Company
or the Company's transfer agent of a certificate representing Shares or
Additional Shares containing a restrictive legend, deliver or cause to be
delivered to the Subscriber a certificate representing such Shares or Additional
Shares that is free from all restrictive and other legends.
IV. MISCELLANEOUS
4.1 Any notice, request, advice, consent or other communication given
hereunder shall be given in writing and sent by overnight delivery service or
registered or certified mail, return receipt requested, and addressed as
follows: if to the Company, to it at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx
00000, Attention: President; and if to the Subscriber, to it at its address
indicated below its signature to this Agreement. Notices so given shall be
deemed to have been given on the earlier to occur of actual receipt or three
business days after the date of such mailing, except for notices of change of
address, which shall be deemed to have been given when received.
4.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the parties hereto.
4.3 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and merges and supersedes
all prior discussions, agreements and understandings of any and every nature
among them.
4.4 This Agreement and its validity, construction and performance shall be
governed in all respects by the laws of the State of New York.
4.5 This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President and CEO
ACCEPTED AND AGREED TO:
SF CAPITAL PARTNERS LTD.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
c/o Staro Asset Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, Xxxxxxxxx 00000
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