EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is entered into as of
February 26, 2003 between ChromaVision Medical Systems, Inc., a Delaware
corporation (the "COMPANY") and Safeguard Delaware, Inc., a Delaware corporation
(the "PURCHASER").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as
of the date hereof, between the Company and the Purchaser (the "PURCHASE
AGREEMENT"), the Company has agreed to sell and issue to the Purchaser, and the
Purchaser has agreed to purchase from the Company 4,646,408 shares of the
Company's common stock, $0.01 par value ("COMMON STOCK") having an aggregate
Purchase Price of $5,000,000 (the "SHARES") as more fully specified and subject
to the terms and conditions set forth in the Purchase Agreement; and
WHEREAS, pursuant to the terms of, and in partial consideration for the
Purchaser's agreement to enter into, the Purchase Agreement, the Company has
agreed to provide the Purchaser with certain registration rights, as well as
certain other rights and remedies as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in the Purchase Agreement and
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agrees as follows:
1. Certain Definitions. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following respective
meanings:
"COMMISSION" or "SEC" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"HOLDER" and "HOLDERS" shall mean the Purchaser and any transferee of
Registrable Securities which have not been sold to the public to whom the
registration rights conferred by this Agreement have been transferred in
compliance with this Agreement.
"REGISTRABLE SECURITIES" shall mean: (i) the Purchased Shares, (ii)
securities issued or issuable upon any stock split, stock dividend,
recapitalization or similar event
with respect to the Purchased Shares; and (iii) any other security issued as a
dividend or other distribution with respect to, in exchange for or in
replacement of the securities referred to in the preceding clauses.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"REGISTRATION EXPENSES" shall mean all expenses to be incurred by the
Company in connection with each Holder's registration rights under this
Agreement other than Selling Expenses, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, "blue sky" fees and expenses, reasonable fees and
disbursements of counsel to Holders (using a single counsel selected by a
majority in interest of the Holders if more than one Holder is participating in
a registration hereunder) for a "due diligence" examination of the Company and
review of the registration statement and related documents, and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company).
"SECURITIES ACT" or "ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities, and all fees and
disbursements of counsel for Holders not included within "Registration
Expenses."
2. Request for Registration.
(a) If the Company receives from a Holder or Holders a written request
that the Company effect a registration with respect to shares of Registrable
Securities held by such Holder or Holders having an aggregate price to the
public (net of underwriters' discounts and commissions) of at least $500,000 or
with respect to at least 300,000 Purchased Shares, the Company will, as soon as
practicable, use commercially reasonable efforts to effect such registration
(including, without limitation, appropriate qualification under applicable state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution, though negotiated, underwritten or other transactions or through a
combination of such methods of sale at the election of such Holder, of all or
such portion of such the Registrable Securities as are specified in such
request.
(b) Notwithstanding Section 2(a), the Company shall not be obligated to
take any action to effect or complete any such registration pursuant to this
Section 2:
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(i) During the period starting with the date ninety (90) days prior
to the Company's estimated date of filing of, and ending on the date sixty (60)
days immediately following the effective date of, any registration statement
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an employee benefit plan),
provided, that the Company gives notice of its intention to file such
registration statement to the Purchaser within thirty (30) days of its request
for registration; and provided, further that the Company is actively employing
in good faith all reasonable efforts to cause such registration statement to
become effective; however, the Company may not delay a requested registration
under this paragraph if the Company's registration statement will include no
equity securities or securities convertible into equity securities and the
requested registration will not be part of an underwritten public offering; or
(ii) After the Company has effected two registrations pursuant to
this Section 2; provided that any registration request that (A) is delayed by
the Company pursuant to Section 2(b)(i) or (B) does not result in a registration
being effected, will not count towards such three registration limit;
(iii) If the Holder requesting registration is able to sell all of
such holder's shares requested to be registered under Rule 144(k) of the
Securities and Exchange Commission adopted under the Securities Act or
(iv) If the Company shall furnish to the Holder or Holders
requesting registration a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 120 days after receipt of the request
of the initiating Holders; provided, however, that the Company may not utilize
this right more than once in any 12-month period.
(c) If the registration pursuant to this Section 2 is effected through a
firm commitment underwritten public offering at the election of the Holder, the
Company shall, together with such Holder, enter into an underwriting agreement
in customary form with a managing underwriter selected by the Holder.
Notwithstanding any other provision of this Section 2, if the managing
underwriter advises the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall so
advise the Holder and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be limited to such amount;
provided, however, that in the event of such limitation on the number of shares
to be underwritten, no securities to be registered for sale by the Company shall
be included unless all shares of Registrable Securities requested by the Holder
to be included in such underwriting are so included.
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3. Company Registration.
(a) If at any time or from time to time the Company shall determine to
register any of its equity securities, either for its own account for the
account of a Holder or the account of a stockholder who is not a Holder, the
Company shall:
(i) promptly give the Holders (excluding any such Holder for whose
account the shares are determined to be registered) written notice thereof; and
(ii) include in such registration (and any related qualifications
including compliance with Blue Sky laws), and in any underwriting involved
therein, all the shares of Registrable Securities specified in a written request
or requests, made within 20 days after the date of such written notice from the
Company, by any such Holder.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise each Holder as a part of the written notice given pursuant to Section
3(a)(i). In such event, the right of each Holder to registration pursuant to
this Section 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of shares of Registrable Securities in the
underwriting shall be limited to the extent provided herein. Each Holder shall
(together with the Company and the other stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, no securities to be registered for sale
by Holders shall be included unless all shares to be registered for sale by the
Company to be included in such underwriting are so included. The Company shall
so advise each Holder and the number of shares of Registrable Securities to be
included in the registration and underwriting shall be so limited.
(c) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, all Holders shall provide
upon request customary lock-up agreements for themselves and their affiliates by
which they agree not sell any of their shares for a period of 180 days from the
effective date of the registration statement.
4. Registration on Form S-3.
(a) In case the Company shall receive from a Holder or Holders a written
request that the Company file a registration statement on Form S-3 (or any
successor form to Form S-3) for a public offering of shares of Registrable
Securities having an aggregate price to the public (net of underwriters
discounts and commissions) of at least $500,000 or a public offering of at least
300,000 Purchased Shares and the Company is a registrant entitled to use Form
S-3 to register the shares of Registrable Securities for such an offering, the
Company shall use commercially reasonable efforts to cause such shares of
Registrable Securities to be registered for the offering on such form
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and to cause such shares of Registrable Securities to be qualified in such
jurisdictions as such Holder may reasonably request. If such offer is to be an
underwritten offering, the underwriters shall be selected by the Holder or
Holders requesting the registration.
(b) There shall be no limit on the number of registration requests by
Holders pursuant to the preceding paragraph.
(c) The provisions of Section 2(b)(i), (iii), and (iv) and Section 2(c)
shall apply to any request for registration pursuant to Section 4(a).
5. Registration Procedures. In connection with each registration effected
pursuant to Section 2, 3 or 4, the Company shall, except as provided in Section
2(b) and 4(c):
(a) Promptly prepare and file with the SEC a registration statement and
such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement, or prepare and
file such additional registration statements, as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement in accordance with the
intended methods of disposition by the seller thereof as set forth in the
registration statement (and the disposition of all shares of Registrable
Securities as necessary to comply with this Agreement) and notify each Holder of
the filing and effectiveness of such registration statement and any amendments
or supplements thereto. The Company shall promptly forward to each participating
Holder's counsel a copy of any correspondence or other written communications
with the SEC or other regulatory authority, relating to the registration
statement or the shares of Registrable Securities.
(b) After the registration, furnish to each participating Holder such
number of copies of a current prospectus conforming with the requirements of the
Securities Act and any other documents incident thereto, copies of the
registration statement, any amendment or supplement to such prospectus or
registration statement and any documents incorporated by reference therein and
such other documents as such Holder may from time to time reasonably request in
order to facilitate the disposition of the shares of Registrable Securities
registered on behalf of such Holder.
(c) Use commercially reasonable efforts to register and qualify the shares
of Registrable Securities covered by such registration statement under such
other securities or "blue sky" laws of all United States jurisdictions (except
in any such jurisdiction where the registration and qualification of the
securities covered by such registration statement is exempt under the laws and
regulations of such jurisdiction); provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
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(d) Notify the participating Holders immediately of the happening of any
event known to the Company (but not the substance or details of any such event
unless specifically requested by any such Holder) as a result of which the
prospectus (including any supplements thereto or thereof and any information
incorporated or deemed to be incorporated by reference therein) included in such
registration statement, as then in effect, includes an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and use commercially reasonable eforts to promptly
update and/or correct such prospectus. Notwithstanding the foregoing, if the
Company shall furnish to the Holder or Holders whose Registrable Securities have
been so registered a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company it
would be detrimental to the Company and its stockholders to update and/or
correct any such prospectus, the Company shall have the right to defer updating
or correcting such prospectus for a period of not more than 120 days after the
notification to the Holders; provided, however, that the Company may not utilize
this right more than once in any 12-month period. During any such 120-day or
shorter period, the Holders will not deliver any such prospectus or sell any
Registrable Securities in reliance thereon.
(e) Notify each participating Holder immediately of the issuance by the
Commission or any state securities commission or agency of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose. The Company shall use its commercially
reasonable efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible time.
(f) Permit a single firm of counsel, selected by the participating
Holders, to review the registration statement and all amendments and supplements
thereto within a reasonable period of time prior to each filing, and shall not
file any document in a form to which such counsel reasonably objects.
(g) Use commercially reasnable efforts to cause the shares of Registrable
Securities registered by the registration statement to be listed or quoted on
each securities exchange and/or market on which the Common Stock is then listed
and/or quoted and prepare and file any required filings with the National
Association of Securities Dealers, Inc. or any exchange or market where the
Common Stock is then listed and/or traded.
(h) If applicable, take all steps necessary to enable each participating
Holder to avail themselves of the prospectus delivery mechanism set forth in
Rule 153 (or successor thereto) under the Securities Act.
6. Holder Deemed an Underwriter. In the event that a Holder selling Registrable
Securities is deemed to be an underwriter, the Company shall enter into such
customary agreements with such Holder as would customarily be entered into with
an
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underwriter (excluding provisions for the purchase and sale of the Common Stock
and any discounts or other consideration) and:
(a) make such representations and warranties to such Holder in form,
substance and scope as are customarily made by issuers to underwriters in
secondary offerings;
(b) cause to be delivered, if requested, to such Holder opinions of
independent counsel to the Company, on and dated as of the effective day of the
registration statement, and within 90 days following the end of each fiscal year
thereafter, which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Holder and their counsel and covering, without
limitation, such matters as the due authorization and issuance of the securities
being registered and compliance with securities laws by the Company in
connection with the authorization, issuance and registration thereof and other
matters that are customarily given to underwriters in underwritten offerings,
addressed to such Holder;
(c) cause to be delivered, immediately prior to the effectiveness of the
registration statement, and at the beginning of each fiscal year following a
year during which the Company's independent certified public accountants shall
have reviewed any of the Company's books or records, a "comfort" letter from the
Company's independent certified public accountants addressed to such Holder,
stating that such accountants are independent public accountants within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with secondary offerings;
such accountants shall have undertaken in each such letter to update the same
quarterly during each such fiscal year for which such books or records are being
reviewed so that each such letter shall remain current, correct and complete as
of the end of such accountant's review of the Company's quarterly financial
statements; and each such letter and update thereof, if any, shall be reasonably
satisfactory to such Holder(s);
(d) shall include in such agreements customary indemnification and
contribution provisions to and from underwriters; and
(e) deliver such documents and certificates as may be reasonably requested
by the Holder to evidence compliance with clause (a) above and with any
customary conditions contained in underwriting agreements, if any.
7. Expenses of Registration. All Registration Expenses incurred in connection
with any registration, qualification or compliance with registration pursuant to
this Agreement shall be borne by the Company, and all Selling Expenses shall be
borne by the Purchaser.
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8. Registration on Form S-3; Other Forms. In connection with each registration
effected pursuant to this Agreement, the Company shall use commercially
reasonable efforts to qualify for registration on Form S-3 or any comparable or
successor form or forms, or in the event that the Company is ineligible to use
such form, such form as the Company is eligible to use under the Securities Act.
9. Registration Period. In the case of a registration effected by the Company
pursuant to this Agreement, the Company will use commercially reasonable efforts
to keep such registration effective at all times during the period commencing on
the effective date of the registration statement and continuing thereafter until
the all Registrable Securities covered by such registration have been sold
thereunder.
10. Indemnification.
(a) The Company Indemnity. The Company will indemnify each Holder, each of
its officers, directors and partners, and each person controlling each Holder,
within the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls, within the meaning of Section 15 of the
Securities Act and the rules and regulations thereunder, any underwriter,
including any of the foregoing incurred in any litigation, commenced or
threatened, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any violation by the Company of its
representations to or covenants with the Holders under this Agreement or any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document prepared by the Company
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act or any state securities law
or in either case, any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each
Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
case to a Holder to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by such Holder or the underwriter
(if any) therefor and stated to be specifically for use therein. The indemnity
agreement contained in this Section 10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld).
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(b) Holder Indemnity. Each Holder will, severally and not jointly, if
Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers, partners, and each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act and the rules and regulations thereunder, each
other Holder (if any), and each of their officers, directors and partners, and
each person controlling such other Holder(s), against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any violation by the such Holder of its representations to or covenants with
the Company under this Agreement or any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, and will reimburse the
Company and such other Holder(s) and their directors, officers and partners,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder and stated to be specifically for use
therein, and provided that the maximum amount for which such Holder shall be
liable under this indemnity shall not exceed the net proceeds received by such
Holder from the sale or sales of the Registrable Securities which gave rise to
the claim for indemnification. The indemnity agreement contained in this Section
10(b) shall not apply to amounts paid in settlement of any such claims, losses,
damages or liabilities if such settlement is effected without the consent of
such Holder (which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under this Section
10 (the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim in any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except to the extent
that the Indemnifying Party is materially and adversely affected by such failure
to provide notice. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term
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thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
11. Contribution.
(a) If the indemnification provided for in Section 10 herein is
unavailable to the Indemnified Parties in respect of any losses, claims, damages
or liabilities referred to herein (other than by reason of the exceptions
provided therein), then each such Indemnifying Party, in lieu of indemnifying
each of such Indemnified Parties, shall contribute to the amount paid or payable
by each such Indemnified Party as a result of such losses, claims, damages or
liabilities as between the Company on the one hand and any Holder on the other,
in such proportion as is appropriate to reflect the relative fault of the
Company and of such Holder in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of any Holder on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Holder.
(b) In no event shall the obligation of any Indemnifying Party to
contribute under this Section 11 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 10(a) or 10(b) hereof had been
available under the circumstances.
(c) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 11 were determined by pro
rata allocation (even if the Holders or the underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraphs. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraphs shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this section, no Holder or
underwriter shall be required to contribute any amount in excess of the amount
by which (i) in the case of any Holder, the net proceeds received by such Holder
from the sale of Registrable Securities which gave rise to the necessity for
contribution or (ii) in the case of an underwriter, the amount by which the
total price at which the Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any such case, the amount
of any damages that such Holder or underwriter has otherwise
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been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
12. Survival. The indemnity and contribution agreements contained in Sections 10
and 11 and the representations and warranties of the Company referred to in
Section 6(a) shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement or the Purchase Agreement or any
underwriting agreement, (ii) any investigation made by or on behalf of any
Indemnified Party or by or on behalf of the Company, and (iii) the consummation
of the sale or successive resales of the shares of Common Stock.
13. Information by Holders. Each Holder shall reasonably promptly furnish to the
Company such information regarding such Holder and the distribution and/or sale
proposed by such Holder as the Company may reasonably request in writing and as
shall be reasonably required in connection with any registration, qualification
or compliance referred to in this Agreement. The intended method or methods of
disposition and/or sale (Plan of Distribution) of such securities as so provided
by such Holder shall be included without alteration in the registration
statement covering the shares of Common Stock and shall not be changed without
written consent of such Holder, except that such Holder may not require an
intended method of disposition which, in the reasonable opinion of counsel to
the Company, violates applicable securities law.
14. Replacement Certificates. The certificate(s) representing the shares of
Common Stock held by a Holder may be exchanged by such Holder at any time and
from time to time for certificates with different denominations representing an
equal aggregate number of shares of Common Stock, as reasonably requested by
such Holder upon surrendering the same. No service charge will be made for such
registration or transfer or exchange.
15. Transfer or Assignment. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The rights granted to the Purchaser by the
Company under this Agreement to cause the Company to register shares of Common
Stock may be transferred or assigned (in whole or in part) to up to two
transferees or assignees of shares of Common Stock, and all other rights granted
to the Purchaser by the Company hereunder may be transferred or assigned to up
to two transferees or assignees of any shares of Common Stock; provided in each
case that the Company must be given written notice by the Purchaser at the time
of or within a reasonable time after said transfer or assignment, stating the
name and address of said transferee or assignee and identifying the securities
with respect to which such registration rights are being transferred or
assigned; and provided, further, that the transferee or assignee of such rights
agrees in writing to be bound by the provisions of this Agreement.
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16. Miscellaneous.
(a) Remedies. The Company and the Purchaser acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which any of them may be entitled by
law or equity.
(b) Notices. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing, must be delivered by (i) courier, mail or hand delivery or (ii)
facsimile, and will be deemed to have been delivered upon receipt. The addresses
and facsimile numbers for such communications shall be:
to the Company:
ChromaVision Medical Systems, Inc.
00000 Xxxxx Xxxxxxx
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Financial Officer
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxxxx, Esq.
to the Purchaser:
Safeguard Delaware, Inc.
000 Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile:
Attention: Chief Financial Officer
with copies to:
Safeguard Scientifics, Inc.
000 Xxxxx Xxxx Xxxxx
000 Xxxxxxxx
Xxxxx, Xxxxxxxxxxxx 00000
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Facsimile: (000) 000-0000
Attention: General Counsel
Each party shall provide five (5) days prior written notice to the other
party of any change in address, telephone number or facsimile number. Written
confirmation of receipt (i) given by the recipient of such notice, consent,
waiver or other communication, (ii) mechanically or electronically generated by
the sender's facsimile machine containing the time, date and recipient facsimile
number or (iii) provided by a nationally recognized overnight delivery service,
shall be rebuttable evidence of personal service, receipt by facsimile or
receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
(c) Waivers. No waiver by any party of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter. The representations and warranties and the agreements and
covenants of the Company and the Purchaser contained herein shall survive the
Closing.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart.
(e) Entire Agreement. This Agreement, together with the Purchase Agreement
and the agreements and documents contemplated hereby and thereby, contains the
entire understanding and agreement of the parties, and may not be modified,
amended or terminated except by a written agreement signed by both parties.
(f) Jurisdiction. EACH OF THE COMPANY AND THE PURCHASER (I) HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT, COURTS OF THE STATE OF DELAWARE AND OTHER COURTS OF THE UNITED STATES
SITTING IN NEW CASTLE COUNTY, DELAWARE FOR THE PURPOSES OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND (II) HEREBY WAIVES,
AND AGREES NOT TO ASSERT IN ANY SUCH SUIT ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
THE SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH OF THE COMPANY AND THE
PURCHASER CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR
NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
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THEREOF. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(g) Governing Law. THIS AGREEMENT AND THE VALIDITY AND PERFORMANCE OF THE
TERMS HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND
TO BE PERFORMED ENTIRELY IN SUCH STATE.
(h) Jury Trial. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY.
(i) Titles. The titles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
* * * Signature page follows * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPANY:
CHROMAVISION MEDICAL SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President and CEO
PURCHASER:
SAFEGUARD DELAWARE, INC.
By: /s/ N. J. Xxxxxxx
------------------------------
Name: N.J. Xxxxxxx
Title: Vice-President
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