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Exhibit 10.21
FIRST AMENDMENT TO
COMMON STOCK PURCHASE AGREEMENT
This FIRST AMENDMENT to COMMON STOCK PURCHASE AGREEMENT (this
"Amendment") is made and entered into this ___ day of October 2000, by and
between BECKMAN COULTER, INC. ("Beckman") and CELLOMICS, INC. (the "Company").
WITNESSETH
WHEREAS, Beckman and the Company have entered into a certain Common
Stock Purchase Agreement dated June 9, 2000 (the "Purchase Agreement") whereby
Beckman purchased 153,256 shares of the Company's Common Stock; and
WHEREAS, Beckman and the Company wish to amend certain provisions of
the Purchase Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto amend the Purchase Agreement and agree as follows:
1. COMMON STOCK. Beckman and the Company agree that the definition of
Common Stock, as such term is used in the Purchase Agreement, shall be
deleted in its entirety and replaced with the following:
Common Stock shall mean the Company's authorized Eight Million
(8,000,000) shares of Common Stock, par value $.01 per share.
2. PREFERRED STOCK. Beckman and the Company agree that the definition
of Preferred Stock, as such term is used in the Purchase Agreement,
shall be deleted in its entirety and replaced with the following:
Preferred Stock shall mean the Company's authorized Four
Million Three Hundred Seventy-Four Thousand Five Hundred
(4,374,500) shares of Preferred Stock, par value $.01 per
share.
3. REPRESENTATIONS AND WARRANTIES. Except as is otherwise modified,
amended and/or restated in this Section 3, the representations and
warranties of the Company as are set forth in Section 5.1 of the
Purchase Agreement shall be true and correct in all material respects
as of the date of this Amendment.
a. ORGANIZATION AND STANDING; ARTICLES AND BYLAWS. Section 3.1
of the Purchase Agreement is hereby amended in order to attach, as
Exhibit A, the Company's Amended and Restated Certificate of
Incorporation (the "Restated Certificate") as presently in effect on
the date hereof.
b. CAPITALIZATION. Section 3.3 of the Purchase Agreement is
hereby deleted in its entirety and replaced with the following:
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As of the date of this Amendment, the Company's authorized
capital stock consists of (a) Eight Million (8,000,000) shares
of Common Stock, par value $.01 per share of the Company (the
"Common Stock"), of which One Million Three Hundred
Thirty-Eight Thousand Five Hundred Seventy-Five (1,338,575)
shares are issued and outstanding, and (b) Four Million Three
Hundred Seventy-Four Thousand Five Hundred (4,374,500) shares
of Preferred Stock, par value $.01 per share of the Company
("Preferred Stock"), of which (i) Two Million Twenty-Four
Thousand Five Hundred (2,024,500) shares have been designated
Series A Preferred Stock, par value $.01 per share of the
Company (the "Series A Preferred"), of which One Million Nine
Hundred Sixty-Six Thousand Six Hundred Eighteen (1,966,618)
shares are issued and outstanding, (ii) Seven Hundred Thousand
(700,000) shares have been designated Series B Preferred
Stock, par value $.01 per share of the Company (the "Series B
Preferred"), of which Six Hundred Ninety-Three Thousand Six
Hundred Seventy-Five (693,675) shares are issued and
outstanding, and (iii) One Million Six Hundred Fifty Thousand
(1,650,000) shares have been designated as Series C Preferred
Stock, par value $.01 per share of the Company (the "Series C
Preferred"), of which One Million Six Hundred Forty-Five
Thousand Six Hundred Thirty-Nine(1,645,639) are issued and
outstanding. The Company has (i) issued warrants exercisable
for 388,141 and 57,829 shares of Common Stock and Preferred
Stock, respectively and (ii) reserved 742,900 shares of Common
Stock for issuance under its stock incentive plans, duly
adopted by the Board of Directors and approved by the
Company's stockholders of which options to purchase 493,057
shares of Common Stock have been granted. Upon consummation of
the Closing, all issued and outstanding shares of capital
stock of the Company will have been duly authorized and
validly issued, will be fully paid and nonassessable and will
have been issued in compliance with all applicable federal and
state securities laws. The Company holds no shares of its
capital stock in its treasury.
In the event of a sale of New Securities (as such term is
defined in that certain Amended and Restated Shareholders'
Agreement dated September 27, 2000 (the "Restated
Shareholders' Agreement")), each holder of Series A Preferred,
Series B Preferred and Series C Preferred (collectively, the
"Preferred Shareholders") have certain preemptive and
participation rights which entitle it to purchase and sell up
to its Preemptive Share (as such term is defined in the
Restated Shareholders' Agreement) of such New Securities.
Each Preferred Shareholder has certain conversion rights
pursuant to Article III, Part B, Section 3 of the Restated
Certificate which entitle it to convert each share of
Preferred Stock into such number of shares of Common Stock as
is determined by dividing $5.62 (with respect to a holder of
Series A Preferred), $12.07 (with respect to a holder of
Series B Preferred) or $18.23 (with respect to a holder of
Series C Preferred) by the Conversion Price (as such term is
defined in the Restated Certificate). The initial Conversion
Price is $5.62(with respect to a holder of Series A
Preferred), $12.07 (with respect to a holder of Series B
Preferred) or $18.23 (with respect to a holder of Series C
Preferred). However, if the Company should issue Additional
Shares of Common Stock (as such term is defined in the
Restated Certificate), the Conversion Price may, under certain
circumstance presented by the Restated Certificate be adjusted
to account for such additional issues.
Each Preferred Shareholder is entitled to certain dividend
rights under Article III, Part B, Section 6 of the Restated
Certificate which entitle it to receive cumulative, annual
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dividends at a rate equal to forty-five cents ($0.45) (with
respect to a holder of Series A Preferred), ninety-seven cents
($0.97) (with respect to a holder of Series B Preferred) or
one dollar and forty six cents ($1.46) (with respect to a
holder of Series C Preferred) per annum per share. Dividends
payable on Preferred Stock may, at the Company's option, be
paid either in cash or in shares of Common Stock.
Pursuant to that certain Letter Agreement dated January 15,
1998 by and between the Company and Carl Zeiss Holding Co.
("Zeiss"), Zeiss and Company have agreed that Zeiss shall have
the right to certain anti-dilution rights to which the holders
of the Series A Preferred are entitled under the conversion
rights provisions of the Restated Certificate.
On July 21, 1999, the Company entered into an agreement which
provided for an equipment financing line of credit with Oxford
Venture Finance, LLC ("OVF"). Under the agreement, OVF is
entitled to receive warrants to purchase shares of the
Company's common stock (with an exercise price of $6.60) equal
to 2.35% of the borrowings under the line of credit divided by
the $6.60 exercise price.
Except as set forth in this Section 3.3, there are no
outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal or similar
rights) for the purchase or acquisition from the Company of
any of its shares of capital stock.
c. AUTHORIZATION. The third sentence of Section 3.4 of the
Purchase Agreement is hereby deleted in its entirety and replaced with
the following:
The execution and delivery by the Company of this Agreement
and compliance herewith, and the offer, and subject to
obtaining requisite approvals of the Company's stockholders,
the issuance and sale of the Shares will not, with or without
notice or the passage of time or both, result in any violation
of and will not conflict with, or result in a breach of any of
the terms of, or constitute be affected, or result in the
creation of any mortgage, pledge, lien, encumbrance or charge
upon a default under any provision of, (i) any state or
federal law to which the Company is subject, (ii) the Amended
and Restated Certificate or By-Laws, or (iii) any material
mortgage, indenture, agreement, instrument, judgment, decree,
order, rule or regulation or other restriction to which the
Company is a party or by which it or any of its property is
bound, or may any of the properties or assets of the Company
pursuant to any such term or give any other person or entity
the right to accelerate the time for performance of any
obligation of the Company; provided, however, that,
notwithstanding the foregoing, the Purchaser, the holders of
Preferred Stock and Carl Zeiss Holding Co. have registration
rights that are similar in certain respects and may be
construed as competing rights.
d. NO MATERIAL ADVERSE CHANGE. The following provision shall
be added as Section 3.12 of the Purchase Agreement:
Since June 9, 2000, the Company has not experienced any
occurrence or event which, to the knowledge of the Company, is
likely to result in a material adverse effect on the Company.
4. RATIFICATION AND CAPITALIZED TERMS. Except as herein revised,
Beckman and the Company hereby ratify and reaffirm the Purchase
Agreement
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in its entirety, and the Purchase Agreement remains in full force and
effect. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Common Stock Purchase Agreement to be executed as of the day and year first
above written.
Attest: Beckman Coulter, Inc.
By: [Illegible]
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Name:
Title:
Attest: Cellomics, Inc.
By: /s/ D. LANSING TAYLOR
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D. Lansing Taylor
President
